Lord Gavron—Took the Oath.

Europe: Maintenance of Peace

Lord Pearson of Rannoch: asked Her Majesty's Government:
	Whether they believe that the European Union has maintained peace in Europe, and whether it is likely to do so in future.

Baroness Symons of Vernham Dean: My Lords, Her Majesty's Government believe that the cornerstone of maintaining peace in Europe has been and will continue to be NATO. Her Majesty's Government also believe that the European Union has played a significant part in providing the framework for promoting peace, stability and prosperity among its member states and in its external relations, and that with enlargement the Union will be even better placed to do so in the coming years.

Lord Pearson of Rannoch: My Lords, I thank the Minister for that reply. I am glad to note that even this Europhile Government do not pretend that any EU country would have gone to war with another since the Treaty of Rome was signed in the absence of the EU. As to the past, would the noble Baroness not go further and agree that NATO must take all the credit for keeping the peace in Europe since 1945? As to the future, does she not agree that the EU is a top-down creation, a conglomeration of different nations, put together without adequate democratic support? Does not history teach us that such conglomerations nearly always end in disaster?

Baroness Symons of Vernham Dean: My Lords, the position of Her Majesty's Government since 1997, and, I believe, well before that, has been that NATO does, indeed, take the credit for keeping and maintaining peace in Europe. However, I know that the noble Lord, Lord Pearson of Rannoch, has serious problems with what he describes as a conglomeration of states. He told us so in no uncertain terms on 28th January last on Third Reading of the European Communities (Amendment) Bill when he said that the European Union is dangerous for peace. That is not a view taken by Her Majesty's Government; nor is it a view taken by any of the countries currently negotiating to join the European Union. The noble Lord may cast his eyes heavenward, but there are a great number of countries who want to join us and whose democratically-elected governments wish to do so. I believe that the structure of the Union means that partners have a natural forum in which to raise their disputes without having to resort to aggression. That is what I meant by helping to reinforce the framework for peace.

Lord Lea of Crondall: My Lords, given the dreadful occurrences over the past 10 years in the west Balkans—countries right in our backyard where the EU spends collectively about 1 billion euros a year on aid and 5 billion euros on security—does my noble friend not agree that it is very much in our interests to treat this matter as part of the EU roadmap and that crocodile tears are being shed by those who say that the EU has no competence to act on security but at the same time oppose it doing so?

Baroness Symons of Vernham Dean: Yes, my Lords, I agree strongly with the comments of my noble friend. The countries of the west Balkans are eligible for a stabilisation and association agreement once they meet certain basic political conditions, which are exactly what one would expect: democracy, respect for human rights and international obligations, including action against war criminals. Those criteria strike me as exactly the kind we would want in order to pursue a peaceful Europe. As my noble friend rightly says, they are also eligible for technical assistance in building institutions and establishing the rule of law. They also have considerable trade liberalisation arrangements with the European Union.

Lord Howe of Aberavon: My Lords, does the Minister not agree that the European Union has succeeded in taming nationalism without suppressing patriotism and in sharing sovereignty without destroying the nation and is, therefore, a uniquely valuable organisation?

Baroness Symons of Vernham Dean: My Lords, the noble and learned Lord put it far more eloquently than I could. People of my generation have grown up without war in Europe. I fully acknowledge what has been achieved by NATO. However, I believe that the European Union has played its role in seeing the disappearance of the fascist dictatorships of Spain, Portugal and Greece, and the communist dictatorships of central Europe. The EU is very much to be congratulated on the constructive role it has played.

Lord Wright of Richmond: My Lords, as a former ambassador to Luxembourg, perhaps I may remind the House that although a loyal member of NATO, Luxembourg nevertheless attached enormous importance to the European Union as a guarantee against any further hostilities between her two neighbours, France and Germany, from which Luxembourg suffered grievously in the past.

Baroness Symons of Vernham Dean: My Lords, again that is a timely intervention. Perhaps I may say to the noble Lord, Lord Pearson of Rannoch, that there may be many criticisms that could be levelled at Europe. Indeed, the noble Lord is eloquent in doing so. I refer to criticisms about the common agricultural policy; bureaucracy; the complex language of treaties, on which he is a great expert; and some of the more obvious demonstrable democratic controls, about which he is concerned. However, to say that the European Union is dangerous for peace is a thoroughly implausible argument.

Lord Russell-Johnston: My Lords, can the Minister tell the House more about the development in the European Union of foreign and security policy? I was surprised at her robust response to the noble Lord, Lord Pearson of Rannoch. I do not know whether the noble Baroness has ever been to Rannoch Moor; I can assure her that it is a bleak place and may well account for how the noble Lord acquired his views. Surely the Minister accepts that while NATO will be the umbrella, the United States needs a reliable, strong, and effective partner in the whole business of making contributions to peace world-wide, to help her, advise her and sometimes to hold her back.

Baroness Symons of Vernham Dean: My Lords, I do not know anything about Rannoch Moor. I take the noble Lord's word that it is a bleak place, but I would say that in my experience that is quite unlike the noble Lord, Lord Pearson of Rannoch, whom I have always found to be rather a jolly companion.
	I remind your Lordships that the European security and defence policy does not conduct European territorial defence; only NATO does that. Of course the ESDP is for crisis management where NATO as a whole is not engaged. But the noble Lord is quite right. The United States has indeed welcomed the ESDP. President Bush said in February 2001 that the United States welcomed the EU's European security and defence policy which was of course intended to make Europe stronger. That was a worthy endorsement.

UK Steel Industry

Baroness Miller of Hendon: asked Her Majesty's Government:
	What is their reaction to the £462 million loss recorded by Corus and what action they intend to take to safeguard jobs in the United Kingdom steel industry against subsidised foreign competition.

Lord Sainsbury of Turville: My Lords, the Government are fully aware that the UK steel industry continues to experience difficult trading conditions which are reflected in the losses recorded by Corus. The company is seeking to address this situation in part through the sale of its aluminium interests. Market conditions are forecast to improve this year. It is hoped that Corus will return to profitability in the near future.
	As for subsidies to steel companies, within the EU there are strict rules limiting aid. Agreements with applicant countries also recognise that it is important to move away from high levels of state aid as soon as possible to help ensure a level playing field is created in the enlarged EU.

Baroness Miller of Hendon: My Lords, I thank the Minister for that reply. Does he agree that, as a result of the illegal tariffs put on our steel exports by the United States of America, the losses could be even greater? That is despite the fact that our steel industry is one of the three most efficient and productive ones in the world. Given that situation, can the Minister tell us what discussions his right honourable friend the Prime Minister had with President Bush last weekend about relieving us from this illegal tariff, particularly as we understand that Mr Mittal, whom the Prime Minister aided in his letter, was actually responsible for the lobbying? We should like to know what proposals his right honourable friend brought up and what the results of those proposals were.

Lord Sainsbury of Turville: My Lords, the Government are determined to stand by our steel producers in combating this unjustified and deeply regrettable action. Britain has one of the most efficient and productive steel-making industries and workforces in the world because we have been through restructuring. It has not been a pain-free process. Since 1980 some 86,000 jobs have been lost in the UK.
	My right honourable friend the Prime Minister raised the issue of the tariffs with President Bush during his meeting in Crawford, Texas, last weekend. He reiterated the UK's disappointment with the US action; he confirmed our support for the robust response by the European Commission; and he expressed support for the efforts by UK companies to secure product exclusions from the US measures. So we have made our views very clear to the American President on this issue. We shall have to wait to see what the impact of that statement is. That would not have taken place immediately with the American President giving his response, but obviously he took that on board.

Lord Brookman: My Lords, I declare an interest as a former general secretary of the Iron and Steel Trades Confederation, the leading union in the steel industry. I agree with the sentiments expressed that the unions fully endorse the actions of the Government on the tariff question. But is my noble friend aware of the great concern of the trade unions in the steel industry and indeed elsewhere in manufacturing that, whereas in mainland Europe unions meet employers and discuss strategic changes, in this country nothing of a similar nature occurs? Bearing in mind the international context of the steel industry and others, does the Minister agree that our situation is untenable? Furthermore, the chairman of Corus is to receive in excess of £500,000 a year while the workers are experiencing a pay freeze? Does my noble friend agree that that is not helpful?

Lord Sainsbury of Turville: My Lords, the Government's position is clear. When important strategic issues are involved they want to see that there have been serious discussions between management and unions. So far as concerns Brian Moffat's salary, we do not comment on individual cases. The setting of executive pay is a matter for the company and its shareholders. But we have been consulting on strengthening the disclosure requirements for directors' remuneration. Legislation will be introduced shortly for a compulsory annual shareholders' vote on the directors' remuneration report.

Lord Razzall: My Lords, does the Minister accept that, notwithstanding the obvious illegal actions by the United States, for which undoubtedly it will be penalised in due course, the worse thing that Her Majesty's Government could do at the present time is to attempt to promote a tariff or a tit-for-tat trade war with the United States as that would cause damage to the steel industry and other industries? Does he further accept that the major requirement of the UK steel industry is a strong and healthy UK manufacturing industry which can purchase steel products? What do the Government propose to do to arrest the steady erosion and decline in the manufacturing base of this country?

Lord Sainsbury of Turville: My Lords, I agree that we do not want a tit-for-tat war taking place, but the Government fully support the action taken by the European Commission in invoking the World Trade Organisation dispute settlement and in requesting consultation with the US under the WTO safeguards agreement, including seeking compensation. We have every right to take firm action.
	Of course, it is critical to steel producers that there is a buoyant manufacturing sector. The Government are deeply concerned to create the right environment for that, but it is not within the Government's scope to make certain that manufacturing industry grows. That depends on the performance of manufacturing industry. All that we can do is to set the right conditions for that, which we have done with our macro-economic policies.

Lord Tebbit: My Lords, is the noble Lord aware that it is now more than 20 years ago that I represented the United Kingdom in the negotiations that concluded a steel deal in Europe to ban permanently, for all, the subsidisation of steel? Yet, as his Answer indicates, European countries are still subsidising their steel industries. In view of that subsidisation, contrary to the agreement of 1981, is it surprising that the American Government feel pretty unhappy?

Lord Sainsbury of Turville: My Lords, I have not followed all the details of the noble Lord's career—especially in its early stages—but I think that he probably did a good job. It is a feature of the steel aid code of the European Coal and Steel Community treaty that steel subsidies have largely been banished. The issue today concerns the position of the accession states and action is also being taken on that front.

Lord Jones: My Lords, will my noble friend tell us how many jobs remain in the British steel industry?

Lord Sainsbury of Turville: My Lords, I cannot give an exact figure but I shall write to the noble Lord with it.

Courts Martial

Lord Bramall: asked Her Majesty's Government:
	What their proposals are for courts martial in the future.

Lord Grocott: My Lords, we are considering whether any changes to the courts martial system will be required when the three service discipline Acts are replaced by a single Act covering all the services. We are also assessing whether changes will be needed following the recent judgment of the European Court of Human Rights in the case of Morris against the United Kingdom. Any changes will reflect the need for service discipline to underpin operational effectiveness.

Lord Bramall: My Lords, I thank the Minister for that interim reply. Does he not feel a little embarrassed that the Government seem prepared yet again to tinker with what is fast becoming the fragile disciplinary system of our Armed Forces? Does he not recall how we pleaded with the Government to obtain a powerful opt-out from the European Convention on Human Rights for our Armed Forces, as the French obtained for theirs?
	We were told that there would be no significant effect on service discipline. When that turned out not to be the case, does his department not remember introducing a new disciplinary procedure which, although inhibiting and time-consuming, was accepted on the clear understanding that it was copper-bottomed from any further inroads from European legislation? They now appear to want to move again. What are we to believe?

Lord Grocott: My Lords, I know that the noble and gallant Lord has raised this and related issues on many occasions. He is right to say that this is an interim reply because we do not know precisely what will be required following the Court judgment in the Morris case that I mentioned. However, to gain the exemption that he describes the French as having would require us to withdraw from the European Convention on Human Rights and renegotiate entry terms. That would be not only a long and complicated procedure but, if I can anticipate the future a little, an unnecessary one. The assumption is being made that the Morris judgment will result in major changes. I do not think that it will.

Lord Peyton of Yeovil: My Lords, the noble Lord enjoys—and, if I may say so, deserves—a reputation for good sense. I hope that he will try to use that good sense to stop uninformed interference in sensitive matters and pay due attention to the opinion frequently expressed by the noble and gallant Lord, Lord Bramall, on a matter about which he knows a great deal.

Lord Grocott: My Lords, I am indeed grateful to the noble Lord, Lord Peyton, for his assessment of my sensitivities and sensibilities. He makes a generous observation.
	Obviously, I recognise the tremendous wealth of experience that the noble and gallant Lord, Lord Bramall, brings to these matters. However, I appeal to the House to acknowledge that the test for the Armed Forces and of their discipline is their operational effectiveness. Does any Member of the House have any reason for doubt, having seen the performance of our Armed Forces in recent years, about their being supremely operationally effective? That is the test and that is how they must be judged in respect of any judgments of the European Court or any Government reaction to those judgments.

Lord Redesdale: My Lords, if the judgment under the Human Rights Act 1998 is upheld, does the Minister agree that a system such as the German system, which divides court cases between civilian and military cases, should be introduced?

Lord Grocott: My Lords, I am always wary about making comparisons between different systems. However, whenever a judgment of this sort is made there is a tendency to over-dramatise its consequences. We must wait to discover precisely what changes, if any, are needed. I can say that in respect of one aspect of the judgment, which concerned the independence of the courts martial, we have already been able to make the necessary changes through Queen's Regulations.
	The House will know that there was a suspension of courts martial. There was no suspension for the Navy; for the Army, they were resumed on 3rd April; and I can tell your Lordships that on 23rd April, Royal Air Force trials will resume. So I repeat: let us not overestimate the drama, if there is one, of the judgment that has been reached.

Lord Campbell of Alloway: My Lords, is the noble Lord aware that I moved the opt-out amendment for the Armed Forces? It was withdrawn on the undertakings of the noble Baroness, Lady Symons of Vernham Dean, which are fully recorded in Hansard. Those were acceptable to the noble and gallant Lords, Lord Bramall, and Lord Inge, and other noble Lords. It was on that basis that the amendment was withdrawn. Will the noble Lord approach the matter with considerable care? It is absolutely essential that those undertakings are honoured, because that was the only basis on which I withdrew my amendment.

Lord Grocott: My Lords, I am indeed aware—having, as the House would expect, read the papers beforehand—of the views expressed by the noble Lord, Lord Campbell. However, if it is felt that any changes are needed—changes are obviously being considered in respect of the Morris judgment—we intend to introduce a tri-service Bill that will take account of the various different systems in the three services and, sensibly, attempt to make them compatible with each other. If further changes are needed, we should make them at that point.

Channel Tunnel Freight Services

Lord Berkeley: asked Her Majesty's Government:
	What action they plan to take to ensure the immediate resumption of full cross-Channel freight services following the disruption caused by asylum seekers.

Lord Filkin: My Lords, the Government continue to press at the highest level for urgent action by the French Government to tackle the disruption to Channel Tunnel services caused by would-be illegal immigrants. We welcome the announcement by SNCF that it plans to restore services from next week.

Lord Berkeley: My Lords, I declare an interest as chairman of the Rail Freight Group. I am grateful for the Minister's reply, but unfortunately the same reply was given by SNCF two months ago, one month ago and on 2nd April, not 1st April.
	I am sure that the Minister appreciates that this has been going on for five months. Will he suggest to my right honourable friend the Prime Minister that he invite the new president of France, when elected, to visit Calais as a priority to look at the holes in the fence and the lack of policing and to try to understand how things are there, rather than viewing them from the centre of Paris or even London?

Lord Filkin: My Lords, that is a courteous thought. However, I hope—without being able to guarantee it—that we will see effective action well before the May presidential elections are resolved. If the French Government do what they said that they would do at the end of March, in response to the requests of the European Union, we shall see a substantial improvement to physical security around Fréthun and to the level of staffing, including SNCF guards, gendarmerie and the national paratroop branch of the gendarmerie. That will approximately double the number of security force personnel policing the area.
	We have argued for a long time that physical security measures had to be put in place and that they had to be supervised by appropriate security staff.

Lord Campbell of Croy: My Lords, it has recently been reported that unauthorised immigrants have jumped on to trains. Is the vigilance of the British police being increased, so that such refugees can be questioned before they disappear off into our countryside?

Lord Filkin: My Lords, the Kent police, who carry much of the burden, are particularly aware of their responsibilities. They responded vigorously on Monday, when, as the noble Lord will know, 60 illegal immigrants found their way into Dover. The police managed to arrest, I think, 40 of those 60 within hours. We commend them on their vigilance. Of course, it should not be necessary for the police to act in that way; such people should be stopped before they enter the Tunnel.

The Countess of Mar: My Lords, I declare an interest as a member of the Immigration Appeal Tribunal. It is not only the French Government who should be approached by the British Government; most people at Sangatte get there with the aid of agents in their own country. Those agents are known. Could the Government communicate with the countries of origin, in order to make sure that the penalties for being an agent and trading in people—that is what it is—are enough to prevent such activity?

Lord Filkin: My Lords, that is an interesting suggestion. I shall certainly discuss it with my colleagues in the Home Office and see whether we already have such action in place. I expect that we have. As noble Lords will know, the Home Office published a White Paper on significant measures to improve security and deter illegal immigrants. Nevertheless, I shall take the issue forward. It is big criminal business, and it would be helpful if we could nip it in the bud in countries of origin.

The Lord Bishop of Hereford: My Lords, is the Minister aware of the serious effects that the breakdown of freight movement through the Channel Tunnel is having on freight businesses? They have built up business valiantly over a long time, and now, in many cases, they face bankruptcy, the loss of jobs and the collapse of business.
	Is the situation not inflicting a severely damaging blow on the environmental transport policy to which the Government are, in theory, committed? What proposals do the Government have to pay compensation to firms that go out of business because of the failure to tackle the disruptive behaviour of the asylum seekers and the failure of the French Government to deal with it?

Lord Filkin: My Lords, I support the sentiments behind the initial part of the question. The Government are concerned about the effect on the rail freight industry and on British and European targets for a modal shift of traffic off roads and on to rail.
	We are aware that some firms are claiming serious difficulty. Our advice—if they need it, which they may not—is that they should initially pursue a civil remedy under the terms of their contracts. They should also pursue remedies, where appropriate, under the European Union's "strawberry" regulation on the free movement of goods. The British Government will give support, in the form of non-legal advice and information; we will not provide financial compensation.

Baroness Scott of Needham Market: My Lords, is the Minister prepared to say whether he will encourage the European Commission to take action, as it did against the French on the issue of British beef imports? The situation represents a contravention of the Treaty of Rome in exactly the same way.

Lord Filkin: My Lords, the Government have had discussions with the European Commission. The Commissioners for trade and for transport are seriously and actively involved in the issue. My noble friend Lord Berkeley has, through the Rail Freight Group, had vigorous discussions with the trade Commissioner recently. The Commissioner is most interested to hear and see evidence of the action that is being taken by the responsible authorities on the other side of the Channel. We will support those efforts to find a resolution, although we recognise that the French Government have recently shown a commendable increase in commitment.

Proceeds of Crime Bill

Lord Bassam of Brighton: My Lords, on behalf of my noble friend Lord Rooker, I beg to move the Motion standing in his name on the Order Paper.
	Moved, That it be an instruction to the Committee of the Whole House to whom the Proceeds of Crime Bill has been committed that they consider the Bill in the following order:
	Clause 1, Schedule 1, Clauses 2 to 140, Schedule 2, Clauses 141 to 255, Schedule 3, Clauses 256 to 271, Schedule 4, Clauses 272 to 325, Schedule 5, Clauses 326 to 330, Schedule 6, Clauses 331 to 442, Schedule 7, Clauses 443 to 448, Schedule 8, Clause 449, Schedule 9, Clauses 450 to 454.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

National Health Service Reform and Health Care Professions Bill

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
	Moved, That the House do now again resolve itself into Committee.—(Lord Hunt of Kings Heath.)

On Question, Motion agreed to.
	House in Committee accordingly.
	[The CHAIRMAN OF COMMITTEES in the Chair.]

Baroness Noakes: moved Amendment No. 104A:
	After Clause 14, insert the following new clause—
	"COMMISSION FOR HEALTH IMPROVEMENT: INDEPENDENCE
	(1) In section 20 of the 1999 Act (function of the Commission for Health Improvement) subsections (3) and (4) are omitted.
	(2) Schedule 2(1) to the 1999 Act is amended as follows—
	(a) in paragraph 2 (general powers) the words "Subject to any direction given by the Secretary of State" are omitted,
	(b) in paragraph 4(a) and (c) (membership) for "Secretary of State" there is substituted "NHS Appointments Commission",
	(c) in paragraph 6(1) and (2) (remuneration and allowance) for the words "the Secretary of State" there is substituted "it",
	(d) in paragraph 6, sub-paragraphs (3) and (4) are omitted,
	(e) in paragraph 10(1) (payment and loans to Commission)—
	(i) for "may" there is substituted "shall", and
	(ii) for "he considers appropriate" there is substituted "are agreed with the Commission",
	(f) in paragraph 10, sub-paragraphs (7), (8) and (9) are omitted."

Baroness Noakes: Amendment No. 104A is designed to improve the independence of the Commission for Health Improvement.
	Clause 14 contains some useful measures relating to the independence of CHI. They take away the Secretary of State's power to consent to the appointment of CHI's chief executive and to give directions in relation to the terms and conditions of CHI staff. Amendment No. 104A goes further in several important respects by further amending the Health Act 1999.
	Subsection (1) of the new clause would delete subsections (3) and (4) of Section 20 of the 1999 Act and, thereby, remove the Secretary of State's power to give directions to CHI and the corresponding obligation on CHI to comply with those directions. Paragraph (b) of subsection (2) replaces the Secretary of State's appointment powers over the chairman and members of CHI with the NHS Appointments Commission, thus depoliticising appointments. Paragraphs (c) and (d) remove the Secretary of State's power over what is to be paid to members of CHI and its committees, including powers over pensions and compensation for loss of office. Paragraph (e) takes away the Secretary of State's discretion as to how much he pays CHI for its work, turning it instead into an agreement between the Secretary of State and CHI. Paragraph (f) removes the Secretary of State's powers and those of the National Assembly for Wales to direct CHI as to how it should spend its money.
	That may all sound rather complicated, but the bottom line is that, with such amendments, CHI would become more independent of government. Earlier in Committee, my noble friend Lady Cumberlege spoke powerfully about the need to take politics out of the NHS. One place that should be totally devoid of politics is the NHS' independent inspectorate. An inspectorate cannot be independent if its governing body is appointed by the Secretary of State. It cannot be independent if the Secretary of State can tell it what to do and it cannot be independent if its funding is determined by the whim of the Secretary of State. This amendment seeks to give CHI proper independence so that it can be totally free of political interference.
	The mere existence of powers such as powers of direction reduces the independence of a body such as CHI. The power of direction does not have to be used as such, but the ability to use a power secures the effect of subservience; that is the history of powers of direction for public bodies. The powers are rarely used but are often relied upon.
	I believe, or at least I hope, that the Government are edging towards a properly independent CHI. For that reason I hope that they will embrace these extra and essential components of that independence. I beg to move.

Lord Peyton of Yeovil: I should like, first, to make what is becoming my habitual protest about the way in which this Bill—along with others—has been drafted. It would be desirable to provide at least some kind of Keeling schedule to indicate to anyone taking part in discussing a Bill what the law will look like if the Government's proposals are carried. I cannot repeat too often or say too strongly how revolting I find it that successive governments show such total contempt for Parliament that they will not provide even the modest degree of furnishing for which I am asking. I hope that the noble Lord, Lord Hunt, who is good about these matters and who does listen, will pay attention to my remarks. He should realise that some of us will simply go on and on and on until Bills are produced which can be readily understood by people who do not have eyes in the back of their heads so that they can read two Bills at the same time. Such improvements will make it possible for sensible discussion to take place.
	I should like to congratulate my noble friend on her amendment. Personally, I have long believed that the National Health Service suffers from an excess of investigation, monitoring and examination by persons who, although sometimes skilled in examination, have seldom any concept of the disruption, delay and waste of time that their interventions cause.
	Recently I took the opportunity to conduct a superficial examination of the body known to its friends as CHI. For myself, because it has a slightly ironic title, I give the name in full: the Commission for Health Improvement. The noble Lord will correct me if I am wrong, but there was a time when I suspected that the duty of the Department of Health was, to put it quite simply, to improve health. Either the officials found themselves so incompetent that they could not do that, or they so wished to introduce reinforcement that they set up this body, which has huge powers.
	However, while the body's functions are declared under Section 20(1) of the 1999 Act, in subsection (2) it is made quite clear that the Secretary of State may, by regulations, make provision. Thus, in effect, the Secretary of State may tell the commission what it can do, when it can do it and how it should be done. Other points are covered, but I shall not bore your Lordships by relating the detail of the entire contents of the clause. I refer also to the subsection to which my noble friend's amendment refers. The Secretary of State can regulate and direct the commission with regard to what it does and when it does it.
	What is the commission for? It does not have even a pretence of independence. It is the lackey of the Secretary of State. I see that the noble Lord is shaking his head. I shall be most interested to hear how any body can possibly enjoy independence when it is subject to ministerial direction of the kind set out here and of the kind against which my noble friend is protesting.
	A brief examination of the commission on my part has revealed that, as a paper mill, it is deserving of quite a high place. Within two years it has established itself as a major source of paper. I have just some of it with me, from which I propose briefly to weary noble Lords with one or two paragraphs. The chairman, whom I am told enjoys a good reputation outside the commission, has written a foreword which is an astonishing piece of optimism:
	"You are warmly invited to this exciting prospectus"—
	when was a prospectus ever exciting?—
	"that we hope captures the essence of the Commission for Health Improvement's . . . properly demanding responsibilities for 2001-2004. CHI's"—
	at this point the commission's "nickname" is used—
	"first year . . . was rich in challenge and included the requirement"—
	here there is a split infinitive—
	"to simultaneously design and establish the organisation, construct wide ranging methods, and employ them across the breadth of our responsibilities. As CHI sets its goals for the next three years, the scale of challenge increases as we commit ourselves to deliver substantial elements of our long term work programme. We have increased the volume and complexity of our activities to support the high levels of performance required".
	I do not doubt that those who suffer from the visits and investigations of this body are enduring increasingly sharp nightmares as a result of that phrase.

Lord Hunt of Kings Heath: I am most grateful to the noble Lord for giving way. Would he not agree that the very appearance of a split infinitive in the foreword to the report demonstrates the wholly independent nature of CHI? If the department had been as interfering as has been suggested by noble Lords opposite, then the split infinitive would never have appeared.

Lord Peyton of Yeovil: I say only that in the Act of Parliament passed in 1999, Parliament was induced by the Government to give this body extremely large functions and then to tell it exactly how to perform them. If that is freedom, then I simply do not understand the language. The fact that so far the Government have not seen fit to follow what it has done in every detail is neither here nor there. The Secretary of State has powers which he ought not to have and which make a nonsense of the commission's alleged independence.
	I should like to refer to what is called the Executive Summary which states fairly briefly what the commission did during its first year. It,
	"published pilot clinical governance review reports . . . five investigations . . . research and field work on NHS progress . . . recruitment of over 180 permanent staff, and assessment and training of over 240 reviewers".
	All those people are going to run around like scorpions, annoying those trying to do a decent job for and near to patients.
	Its last claim is that it has established,
	"effective internal management arrangements to ensure high standards of performance including corporate governance".
	I dare not weary the Committee with the chairman's introduction to its next report.
	The commission claims to have looked at itself in the mirror. It must have been a nice, friendly mirror. Amazingly, it saw reflected a very good view of itself and was quite fascinated.
	But there is another view. I asked one or two people of eminence whether they endorse and share the view which the commission takes of itself. "Nothing of the kind", they say. Some regarded it as superficial and aggressive, devoting itself to investigating problems which were well known. The effect of its investigations, they say, is not to cure problems but to delay tackling them. What the commission does often enough, although I have not been able to follow its tracks myself, follows disruption and frustration. The efforts to put things right by those in a position to do so are therefore delayed.
	I hope that the Minister will not attribute to me a desire to sound off and oppose efforts to put things right, which deserve respect, but people whose duty it is to investigate need to be careful that they do not greatly upset, disturb and frustrate those who are trying to do an important job of work. I support most warmly what my noble friend said.

Baroness Northover: I support—perhaps more straightforwardly—the amendment of the noble Baroness, Lady Noakes.
	Professor Kennedy concluded in his report on the Bristol cases:
	"The quality of healthcare should be regulated through bodies such as the National Institute for Clinical Excellence and the Commission for Health Improvement. These bodies should be independent of government".
	He states that it is essential that CHI,
	"should be suitably structured so as to give it the necessary independence and authority",
	to carry out its work.
	In my view, CHI is already doing a useful and commendable job. The Government should be supported. They set up these bodies in the first place and we welcome the extension of CHI's independence proposed in the Bill. However, we agree with the noble Baroness, Lady Noakes, that the Secretary of State's role should be removed in order that genuine independence is, and is seen to be, the order of the day and to ensure that there are no loopholes through which a Secretary of State might be tempted to squeeze. We are happy to support the amendment.

Baroness Finlay of Llandaff: I, too, support the amendment, which seeks to increase the independence of CHI and other such organisations.
	The noble Baroness, Lady Northover, quoted from the Kennedy report. That report also states:
	"The various bodies whose purpose it is to ensure the quality of care in the NHS (for example, CHI and NICE) and the competence of healthcare professionals (for example, the GMC and the Nursing and Midwifery Council) must themselves be independent of and at arm's-length from the DoH.
	"All the various bodies and organisations concerned with regulation, besides being independent of government, must involve and reflect the interests of patients, the public and healthcare professionals, as well the NHS and government".
	I reinforce the view that the work undertaken by CHI has been very valuable. It has highlighted deficits in care and deficits in the management of services for patients. All the improvements in patient care are long overdue and welcomed by everyone. Everyone in this Chamber—just as everyone in the population as a whole—will, on one day or another, be a patient in a service which is absolutely crucial to the well being of the country.

Lord Chan: I, too, support the work of CHI. Previously in Committee I asked who will review CHI and received the answer that it will be the National Audit Office. There are therefore sufficient safeguards in regard to CHI's position. It is doing an excellent job. The amendment can certainly be supported.

Lord Hunt of Kings Heath: The noble Lord, Lord Peyton, again draws to our attention the problems involved in following different legislation. I sympathise with him. I am anxious to see a consolidated measure on NHS legislation generally. I shall see whether between the Committee stage and Report stage we can produce some guidance to enable us to follow this legislation more clearly.
	The noble Lord has never been very keen on any of the committees for which I have sought parliamentary support. But, as the noble Baronesses, Lady Northover and Lady Finlay, said, the appointment and establishment of the Commission for Health Improvement has been a great advance in driving up standards in the National Health Service.
	Despite having had a national service for 53 years, it is interesting to note that we have never had any kind of national inspectorate. One of the reasons why, historically, there has been such patchiness and inconsistency between different parts of the NHS is that we have not had a robust inspectorate.
	The noble Lord quoted from the annual report of the Commission for Health Improvement. I commend to him some of the reviews it has undertaken of clinical governance in a considerable number of NHS trusts. As has been suggested by other noble Lords, CHI has identified unsafe practices. It has identified certain organisations whose boards have not been getting the information required to make proper judgments and decisions, and it has raised issues of poor leadership within individual organisations.
	But the commission has not had a wholly negative impact. It has also identified many examples of good practice. It has a role in helping to spread good practices as much as in identifying problems in particular NHS organisations.
	The commission is a crucial part of the Government's strategy to drive up standards in the National Health Service. In that context, there is no reason at all why the Government should seek to undermine the independence of the commission. My own experience, as the Minister responsible for the commission, is that the chair, Dame Deirdre Hine, who used to be the Chief Medical Officer in Wales, and the chief executive, Mr Peter Homa, are extremely vigorous people, well able to embark on rigorous discussions with the Department of Health. In the reviews that they undertake of NHS organisations they are wholly independent in what they seek to do.
	The Government have always sought for CHI to be at arm's length from Ministers and the Department of Health. That is why we established the commission as an executive non-departmental public body. CHI is no different from other executive non-departmental public bodies across government. It is a key feature of its establishment that the Secretary of State remains fully accountable to Parliament for the performance and the governance of the body in question. There is no justification for the Secretary of State abdicating that responsibility in the case of the commission. It is a vital part of constitutional arrangements and of ensuring public accountability that the Secretary of State appoints the chairman and other members of the commission. CHI is in no respect different from any of the department's other executive non-departmental public bodies—the General Social Care Council, the Human Fertilisation and Embryology Authority, the National Radiological Protection Board, the Public Health Laboratory Service Board and the National Care Standards Commission.
	I do not believe that it would be appropriate for appointments to be undertaken by the NHS Appointments Commission, which was set up essentially to make appointments to local NHS bodies.

Lord Peyton of Yeovil: The Minister's speech takes little account of Section 20(2)(a) of the 1999 Act:
	"The Secretary of State may by regulations make provision . . . as to the times at which, the cases in which, the manner in which, the persons in relation to which or the matters with respect to which any functions of the Commission are to be exercised".
	Those are sweeping powers. One might say that the Secretary of State was entitled to give guidance but those are detailed powers. If the Minister says that the Secretary of State would never do such things, why not accept my noble friend's amendment and abandon a position that, from what the Minister is saying, is quite unnecessary?

Lord Hunt of Kings Heath: It is quite appropriate for the Secretary of State, in his role of directing the National Health Service and in accounting to Parliament, to set the parameters within which CHI works. Of course we have regular discussions with the commission about its workload, budget and the number of reviews that it undertakes each year.
	The substantive point is that there is no suggestion and there will be no suggestion of any ministerial interference in the conduct of reviews undertaken by CHI. The basis for the robustness of the changes that we are making depends on a vigorous, independent inspectorate.
	As to the new direction-making powers that the new clause would remove, I stress that those are reserve powers. There has never been any suggestion that they should be used as a matter of routine. It has always been our intention that they should be used only rarely, if at all. There has to be a backstop of reserve power if a situation ever arose where there was a serious problem in relation to activities or governance that the commission, for whatever reason, failed to address.
	As the Secretary of State is accountable to Parliament for how the commission acts, surely it is right that he should be able to take whatever action is necessary at the time. I stress that such a power would be used in extremis. Not only is CHI already independent but—as the noble Baroness, Lady Noakes, suggested—its independence is enhanced by the Bill.

Baroness Finlay of Llandaff: Will the Minister confirm that the appointment of chief executives to the commission will be done by CHI itself, not by the Secretary of State or the First Minister of the National Assembly for Wales?

Lord Hunt of Kings Heath: CHI's chief executive had to be appointed with the consent of the Secretary of State. The Bill will leave it to CHI to make the appointment without requiring that consent. The Bill also gives CHI control over the terms and conditions of its employees. The commission will be able to delegate its functions and will for the first time publish its own independent annual report on the quality of services to NHS patients—which will be presented to Parliament.
	With those changes, CHI's degree of independence and powers of direction compare favourably with other executive non-departmental bodies. The Public Health Laboratory Service and the National Care Standards Commission must comply with any directions given by the Secretary of State for their staff terms and conditions. The Bill abolishes the power to give such directions to CHI.
	It is in the Government's interest to have an independent inspectorate which will be tough and robust and will ensure that the NHS pays careful attention to its reviews and inspections. Nothing in any of the Government's plans for the future of the NHS would, in any circumstance, seek to undermine those independent reviews. We have the balance right between the necessary accountability of the Secretary of State to Parliament and the considerable independence of the commission. On that basis, I invite the noble Baroness to withdraw the amendment.

Baroness Noakes: I thank the Minister and noble Lords who have supported the amendment—particularly my noble friend Lord Peyton for his usual powerful contribution. He pointed that CHI has extensive functions but without freedom because potential use of the powers in the 1999 Act take away the commission's freedom and independence.
	The Minister likes to describe CHI and the powers held over it in terms of an ordinary, non-departmental public body but he is making the wrong comparison. He says that it is appropriate for the Secretary of State to set the parameters and proper for Ministers to have powers of direction. If one compares CHI with a body such as the National Audit Office or Audit Commission, those are genuinely independent inspectorates. There are no powers of direction over those bodies and the same degree of proposed ministerial control over the money that they receive to undertake their work.
	The Department of Health's view of CHI can be characterised as having its own poodle, not a watchdog over the NHS.

Lord Hunt of Kings Heath: Surely the noble Baroness agrees that since CHI's resources come from money voted by Parliament and given the Secretary of State's responsibilities, there must be discussions between him and CHI about the budget—based on CHI's likely workload over a financial year. That seems a perfectly proper and appropriate relationship. I have stressed that in the actual conduct of reviews and the reports that it writes, CHI will be wholly independent.

Baroness Noakes: I thank the Minister. I can see that he has been trying to make a distinction between the powers over the body and the work that it does. But if powers of direction exist, they can infiltrate into the work in a way which may not be seen.
	I agree that the Secretary of State should not be able to write CHI a blank cheque—the Secretary of State would be accountable for moneys voted to him. However, if we look at the way in which the Audit Commission is financed and the different way in which the National Audit Office is financed, we see that there are different sources of income, not dependent on the decision of the Secretary of State. My amendment seeks to replace the process of agreement. That could be made transparent; it could be brought into the open if there were disagreement. However, the Bill as drafted merely says that the Secretary of State determines the amount of money. I am attempting to move that into an environment where the debate which may well be taking place behind closed doors will properly take place in public, with CHI stating what it believes it needs to do the work that is implied in its functions. That should be wholly in the open in order to enhance the independence of CHI.
	I can see that the Minister has not listened to the reasoned arguments of noble Lords who have supported the amendment. I should like to reflect on his remarks, as I am sure others would. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe: moved Amendment No. 105:
	Before Clause 15, insert the following new clause—
	"COMMUNITY HEALTH COUNCILS: SCHEME FOR REFORM
	(1) The Secretary of State shall lay before Parliament within twelve months of the date of coming into force of this section regulations setting out a scheme for the reform of the Community Health Councils in England.
	(2) Before laying regulations under subsection (1), the Secretary of State shall consult the Association of Community Health Councils for England and Wales and such other bodies representing the interests of patients as he considers appropriate.
	(3) The scheme set out by the Secretary of State in regulations under subsection (1) shall extend to all parts of the health service (including the provision of Part 2 services under the 1977 Act).
	(4) The Secretary of State may make regulations providing for access by members of a Community Health Council to premises from which services under Part 2 of the 1977 Act are provided.
	(5) The scheme set out by the Secretary of State in regulations under subsection (1) shall provide for the proper representation of the population in the area served by a Community Health Council on that council.
	(6) Regulations under subsection (1) may not be made unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament."

Earl Howe: We now come to the issue in the Bill which, more than any other, has provoked controversy and passionate disagreement across the party-political divide. I refer of course to the Government's proposal to abolish community health councils. The proposal is not new to us. It has been regurgitated by the Government from the legislative programme that they were forced to truncate at the end of the previous Parliament, when, following extensive debates on the Health and Social Care Bill in both Houses, community health councils were saved from extinction by a decisive vote in this place.
	Following that, there was, very noticeably, no pledge in the Labour Party's election manifesto that they would do away with CHCs if re-elected. That is hardly surprising in view of the outright hostility with which the healthcare professions and patients had greeted the original proposals. Yet, instead of abandoning the idea gracefully, the Government have returned to it with renewed vigour.
	It would be one thing if Ministers had begun this exercise with the express aim of wanting to enhance and improve patient and public involvement in healthcare. I have no objection to that idea. Indeed, I am thoroughly in favour of it. Community health councils, as we have said previously in this Chamber, are not perfect creatures. They require modernisation. Although many work very well indeed, many do not.
	However, rather than taking as their starting-point the imperative to find a working formula that is best for patients, the Government began with a decision that, whatever happened, CHCs must be swept away. The consultation document sent out by the Government stated at the beginning:
	"The immediate focus of this document is the Government's intention to legislate at the earliest opportunity to replace CHCs".
	In other words, whether anyone liked it or not, that would be the conclusion of the consultation exercise.
	My attachment, and the Opposition's attachment, to CHCs is not borne of sentiment, awkwardness or cussedness. Unlike the Government, we are open-minded about how best to ensure that patients have an independent voice and an independent watchdog within the NHS. We believe strongly that there should be reform. The reason we want to see CHCs retained and strengthened, and not abolished, is simply that no other model for patient representation that we have seen has the potential to do as effective a job. The arrangements that the Government wish to substitute for CHCs are slightly different from those that they presented to us before the general election. It therefore behoves us all not to dismiss them out of hand, but to examine them in a constructive spirit.
	There are several key tests for any replacement arrangements for CHCs. Will they be truly independent of government and of the health service? Will they be effective in acting as a watchdog on behalf of patients and the general public? Will they be convenient to users? Will they command public confidence? It is my contention that the Government's proposals fail every single one of those tests.
	What do the proposals amount to? They amount to inventing a number of new types of body and parcelling out the functions of CHCs among them. In acute hospital trusts there will be in-house patient advice and liaison services whose job it will be to provide information to patients. For each trust and PCT there will be a patients forum, whose members will inspect and monitor health services for patients and make representations on their behalf. To whom will representations be made? They will be made either directly to the trust on which each forum is based, or to the overview and scrutiny committee of the relevant local authority. The overview and scrutiny committees will perform the scrutiny function currently undertaken by CHCs.
	If you want to make a complaint, to whom do you go? Do you go to a patients forum or to an overview and scrutiny committee? No. You go to the independent complaints advocacy service. That service will not be a unified service, but rather it will be provided by a range of separate NHS organisations. So who will draw everything together? Overseeing patient involvement nationally and reporting to the Secretary of State will be the new commission for patient and public involvement. It will be the job of the commission to support and co-ordinate patients forums.
	Assuming that you have that structure clearly in your head, what is its most striking feature? Clearly, it is highly fragmented. It is far from being immediately understandable to the ordinary patient. The transparency of the current system has been lost. It is not, like a community health council, a one-stop shop for the patient, a place where he or she can be guided, informed, supported and represented on an independent and impartial basis. The separation of the scrutiny work, the monitoring work and the complaints work of CHCs will automatically reduce the extent to which these areas of activity mutually inform one another.
	It is therefore less likely, not more likely, that the new system will sort out problems for patients in a speedy and effective way. That is because many patients have quite complex problems involving a number of different services. Where a patient's journey spans a number of different trusts, it will no longer be possible for one body to monitor or track the whole of a patient's experience. Individual patients forums will have a remit only for considering their own trusts' functions, with no formal way of coming together to provide an informed local overview.
	The matter can be summed up very simply. Instead of being centred on the needs of the patient, the new structures are simply being bolted on to the existing machine. I suggest that that fact should make us suspicious. The obvious question is: what is being lost in the wash? The answer is: a great deal. The remit of patients' forums and of the commission for patient and public involvement will be considerably restricted compared with that of CHCs and ACHCEW at present. They will not, for example, be able to campaign against the closure of a hospital. They cannot query major capital projects or call for public consultation. They cannot take legal proceedings to enforce their rights or those of patients. They cannot undertake "casualty watch"-type exercises. They will have no overarching remit to represent the interests of the public or engage in work for the general public benefit in the field of healthcare. Unlike CHCs, the forums will have no power to refer contentious or disputed decisions to the Secretary of State. The Government have said that overview and scrutiny committees will have that function, but those committees will have no statutory duty to scrutinise the reports that they receive; they will have only a power to do so.
	What is also being lost is independence. How can we call the Commission for Patient and Public Involvement in Health independent, when its chairman and first chief executive will be appointed by the Secretary of State? How can we call PALS independent when they will be staffed by trust employees? How will patients forums present themselves as truly independent when they are trust-based organisations with an inbuilt trust-based perspective? How, indeed, can the public have 100 per cent confidence in a forum that is not separate from the National Health Service but based within it?
	Every key test that I set out earlier for the Government's proposals has been failed. We need to ask the Government to think again, to take the tried and tested model of community health councils—for which there is widespread support—and work up proposals to strengthen and build on that model, consult on those plans and come back to Parliament again. I beg to move.

Lord Peyton of Yeovil: I warmly support what my noble friend has said, and the amendment that he has proposed. My complaint about the Government setting up these organisations is that they always behave like gardeners who, having planted a nice rose, or some vegetables or trees, cannot restrain themselves digging them up to see how the roots are doing. Nothing grows in those circumstances, yet all governments persist in doing this. The present Government are worse than most in relation to this thoroughly bad habit.
	The Government suffer, au fond, from a certain confusion. They are very keen to be seen to be concerned with the welfare of the patient—the ill, the sick—and they are right to be so. They are also concerned, however, to do things in a way that is convenient to them, and that tends to edge forward and be given a priority that is denied to patients. I do not suppose for a moment that the Minister will get up and say that he entirely agrees with me, but I am bold enough to hope that, before he retires to bed tonight, he might just wonder whether there is not a grain of common sense and truth in what I am trying to say.

Lord Clement-Jones: I have a great deal of sympathy with what the noble Earl, Lord Howe, has said, and particularly with his powerful critique of the Government's proposals. Under those proposals, at least four organisations—possibly five—will take over from CHCs: patient advocacy and liaison services; patients forums; the independent complaints advocacy service; and the local authorities' overview and scrutiny committees. There will be a patients forum for each trust locally. The functions of CHCs will be fragmented; no single body will have an informed local overview of health services. The benefits of the one-stop shop provided by CHCs will be lost. Many points of uncertainty surround the scrutiny role of local authorities, particularly in relation to the lack of a duty to act.
	Forums will not be independent of trusts, and their membership will potentially be too much under the control of Ministers. They will have limited powers, even in comparison to CHCs, and will not even have staff of their own. The role and independence of the Commission for Patient and Public Involvement in Health, and its provision of staff, is extremely uncertain, ambiguous and unsatisfactory, particularly in terms of its activities at local level. There are many other objections to the proposals, and they will no doubt be the subject of debate today. Even the cost of the system has been estimated to be 10 times that of the current system.
	If we were to put the clock back 18 months, we might well go further and support this amendment. Some people might still prefer CHCs to be reformed, rather than being abolished and having something new put in their place. I am tempted to say that we, on these Benches, would not have started from here. However, we have to deal with circumstances as they are. We have been debating these issues for more than 18 months, and matters have moved on. Many of your Lordships will remember the battle we had over the abolition of CHCs during the passage of the Health and Social Care Bill. A compromise over the powers of new patients councils, which was inserted in the Commons, might have been reached if the general election had not intervened. We believe that patients, the public, and the staff of the CHCs would be better served by agreement on definite proposals in this Bill, rather than by waiting for a scheme to be devised over the next 12 months.
	It was interesting to read the letter in the Guardian today from a member of a modernisation agency, who also happened to be the chairman of the Long Term Medical Conditions Alliance. She admonished a number of us for political points-scoring in what I thought was a very political points-scoring way, praying in aid a discussion that she had had with 23 members of the alliance, which comprises some 117 organisations. The one area of agreement that I share with her, however, is that there has been enough uncertainty over the past 18 months, and we need some certainty in the Bill.
	One-fifth of the membership of the CHCs has fallen away. Staff morale is getting lower by the day. We need to make decisions soon about the new patient and public consultation and representation structure, otherwise valuable expertise will be lost to us. In Committee, we wish to explore whether the Government can agree with opposition parties on a scheme whereby we can establish patients councils as a one-stop shop for patients and the public, and as a powerful voice in the National Health Service for the local community, but one that works from within the health service, as recommended by the Kennedy report. Failing such a willingness by the Government to agree, an insistence on the status quo for CHCs may be the only option open to us. We do not believe that we have yet reached that point, but a great deal depends on the Minister's reply to this and other amendments.

Baroness Pitkeathley: I rise to oppose the amendment, and that is not because I have any lack of admiration for the work of many community health councils. Indeed, I was the chief officer of one myself for a short time in 1974, when they were set up. We have to recognise, however, that the world is very different now. Many of your Lordships will not be old enough to cast your minds back that far, but in 1974, the very idea that a body representing patients' views should be set up was revolutionary. Now, much more than that is demanded: patients must be at the centre of the running of the National Health Service. I have bored your Lordships before with my experience as a patient over long months last year, and with the fact that I feel that we have come a long way in enabling patients' views to be at the centre of the National Health Service, but there is still some way to go.
	The Government's proposals in the Bill show their commitment to putting patients at the centre. We need organisations and structures that reflect that commitment, and it is a credit to consumer and patient organisations that we have reached the stage of being able to propose radical changes. On the simple issue of complaints, for example, the present system is cumbersome and takes a long time. Many patients' concerns are quite simple to deal with and could be resolved by the provision of information by the patient advocacy and liaison services, enabling them to be settled at an early stage. There will be many more PALS available than there have been CHCs. In addition, every primary care trust will have a forum that will monitor and review services, obtain the views of patients and carers—I am particularly pleased about that—provide advice and make information available. They will also provide annual reports to enable monitoring of how they are getting on.
	The skills and experience of CHC staff and members will not be lost when the new system is set up. I would be very concerned about that, but I am convinced that they will be able to be integrated into the new system.
	I am delighted with the Government's proposals to set up a national commission, which will have far greater powers at national level than ACHCEW ever had. The title of that national body—the Commission for Patient and Public Involvement in Health—shows that it will go even wider than involving patients.
	We must be careful of overstating how well known and integrated CHCs have been. Many of your Lordships will be familiar with the MORI survey that showed that fewer than 3 per cent of those making a complaint had even heard of a community health council. The new structures will provide more accountability and will be much more focused, with a national voice. Make no mistake, these are radical proposals, but that is what we need. We want to make patients and the public an integral part of the running of the National Health Service. Everyone who is committed to that should welcome the proposals.

Baroness Finlay of Llandaff: I find myself in a strange position when speaking to the amendment, because in Wales we shall be maintaining CHCs, but our experience of them and the way in which they are evolving may have been slightly different. Their collective memory has been extremely valuable. I have served as a non-executive member of a health authority in which the CHC members acted a little like sand in a shoe, but were also useful to inform what was going on. For patients and their carers they act as a single point to which they can go when they feel angry, confused, frightened or upset and are not sure which route to take. It is very important that patients and their carers have a single point of contact that can help them filter out the most appropriate route to take in the future.
	I have also experienced the advocacy role of CHCs at the sharp end. A member from Cardiff CHC came along with a patient of mine to speak to me and help to resolve issues. The CHC member was extremely helpful in acting as the patient's advocate. We have some examples of good practice there which I hope will be picked up throughout whatever other systems evolve in the rest of the UK.
	I would welcome any moves to simplify the complaints procedures. Any delays in complaints for patients and their relatives and carers increase stress and anger and make them feel that there is a conspiracy to withhold information from them. Any way in which that process can be simplified and speeded up must be welcomed.

Lord Skelmersdale: I am the first to admit that the current consumer representation in the health service has its faults, as we have heard over the past few minutes. However, that is no reason for the Government to throw everything up in the air and go nap on something entirely new. Reform is certainly needed, but wholesale destruction is not.
	In an article in the Health Service Journal, much favoured by the Minister, CHCs are described as a channel for patients' concerns, with limited powers and very small budgets. Both those faults could and should be remedied in the Bill. However, the article does not point out that the Bill replaces a long-standing system of proven efficiency that is easily understood and—importantly—accessed by the public.
	Above all, the article does not say that CHCs are independent of the NHS. That independence gives them authority in the eyes of the public. Nor does it say how, if at all, patients forums are to interact one with another. As my noble friend Lord Howe has said, the Government propose that individual patients forums will be able to consider only the work of trusts in which they are based. Even worse, they are to be situated in NHS buildings and staffed principally by NHS staff. What patient is going to complain in the same place and to the same organisation where the complaint originates?
	The proposals are very complicated and, as I understand it, are still being worked out in the department, despite the amount of time that has been available for that. I can find nothing in them that could not be achieved through a reform of the existing system. Like the noble Lord, Lord Clement-Jones, I urge the noble Lord, Lord Hunt, who is well versed in the ways of the NHS, to stand back and for goodness sake think again.

Baroness Carnegy of Lour: I think that I picked up from the noble Lord, Lord Clement-Jones, that the Liberal Democrats are not going to support the amendment and that they fancy their own ideas, which they will put forward later. I do not know what the rest of the Committee thinks about that, but it seems to me that my noble friend is giving the Government a chance to achieve what they want to achieve—obviously they have thought deeply about what they want to achieve—by reforming the existing community health councils, not by disruption. I am sorry that the Liberal Democrats do not support the amendment, which seems a sensible first shot. If the Government cannot be persuaded or forced to agree to it, we shall have to resort to some later measure, but this is the best possible objective.
	I do not want to repeat all the arguments, but I should like the Minister to tell me one thing. When talking about patients forums, the Government always talk about patients, not the public. Do the Government consider that every member of the population of a given area is a patient—presumably because we all go to see a GP—or do they mean only those who have been or are patients in a hospital?

Lord Hunt of Kings Heath: Perhaps I can respond to that point now. For a trust that covers an acute hospital, for example, we mean only those who are or have been patients, but for primary care trusts, all patients who are registered with a GP within that area will be covered. Primary care trusts will have a broad public role in that sense.

Baroness Carnegy of Lour: In that case, the Bill would be clearer if there were a reference to patients and the public. My noble friend Lord Howe asked the important question of who will campaign against a hospital being closed. Can a patients forum do that? That and many other issues would be of concern to the whole community, not just to people who see themselves as patients at a given moment. With the destruction of community health councils, that role will be left to local authorities. As we all know, local authorities will act in a party political way—that is their nature. We do not want that. We want the job to be done by the community as a community on grounds of health. Any member of a local authority knows that it is difficult to separate such issues from the political scene. In that respect alone, the Bill is inadequate. I hope that references to patients can always include the public when that is what is intended. I also hope that somewhere—presumably in the patients forum, if the current proposals are adopted—the ability to campaign will be included, because it is essential.

Lord Morris of Aberavon: I find it difficult to be enthusiastic about community health councils. The Government's proposals for England have positive attractions. In 1974, I was responsible, as Secretary of State, for the appointment of all members of community health councils. I had high hopes for them and thought that they would be the means of dealing with the matters set out by the noble Baroness, Lady Finlay. There is a great need to provide the patient, who is at the heart of our health service, with the machinery to ensure that his or her views are made known and to monitor our health system.
	Regrettably, the record has been patchy. I started off with high hopes and was responsible for community health councils for five years. I have not heard reports that they have improved since that time. CHCs' records depended on the quality of their membership and perhaps even more so on their staff. Generally, however, they were a disappointment.
	I should like to give the Government's proposals, certainly as they apply to England, a fair wind. The machinery is badly needed, and it needs to be improved. I have found the record of the CHCs to be extremely patchy, and I had hoped for very much better.

Baroness Thomas of Walliswood: I apologise that, earlier in the proceedings, I interrupted the noble Baroness, Lady Carnegy of Lour, but I had forgotten the point we had reached in the exchange between her and the Minister. I simply wanted to raise an issue which has not yet been discussed—the potential for conflict between patients forums, which in a way represent the two contractual parties to the local health service. I was wondering what the Minister can tell us to reassure us about that.
	Based on my experience of the health service—I have been a member of a hospital trust board and of a CHC—I realise that the patients forum for a given primary care trust and the forum for a given acute hospital trust will not always agree on who is at fault, what has gone wrong, whether something has gone wrong, or any of the other issues that the patients forums may wish to examine. Unless I have misunderstood the proposals, that situation will be exacerbated by the fact that the officials of the two bodies will be employees of those bodies.

Lord Hunt of Kings Heath: I must make it clear that the staff who support patients forums will be employed by the national commission. They will be wholly independent of the individual NHS trusts.

Baroness Thomas of Walliswood: I thank the Minister for that intervention; it clarifies a point I had not fully taken on board. Nevertheless, there remains the potential for a conflict of interest which could go against what I assume to be the Government's objective—to improve things for patients and, as the noble Baroness, Lady Carnegy of Lour, said, for members of the public.

Baroness Masham of Ilton: No one could have explained the situation of the fragmentation of the Government's new National Health Service as far as patient support bodies are concerned more clearly than the noble Earl, Lord Howe. I shall speak to the group of amendments on patients councils—Amendments Nos. 111 to 136—because I feel so strongly that there must be an independent body to which patients know they can go. It is interesting, however, that Wales and Scotland are retaining their CHCs. I believe that that will just cause more confusion.

Lord Hunt of Kings Heath: This has, once again, been an extremely interesting debate. This is one of the very important parts of the Bill, on public and patient involvement in the NHS. As some noble Lords will know, I have a particular interest in community health councils because, like my noble friend Lady Pitkeathley, in 1974, I was one of the first CHC secretaries to be appointed. As my noble friend Lord Morris has suggested, those were heady days. At the time, we all thought that CHCs would be tremendous organisations that would have a real impact on how patients were dealt with within the NHS. Experience, however, has not been as positive as one would have wished.
	Of course some CHCs have done very valuable work, and I pay tribute to CHC members and staff who have served in the years in which CHCs have operated. The fact, however, is that CHCs' performance over the years has been patchy. Can any noble Lord, hand on heart, say that the NHS is in such good condition that it can identify that the patient comes first, or that, since CHCs began operating, the NHS has become completely sensitive to the needs of patients? I do not think that any noble Lord can honestly say that. The fact is that the NHS still has a considerable way to go before it treats patients as we all want them to be treated.
	I fully accept that the key test will be whether the Government's combined proposals have led to much more powerful patient and public involvement in the NHS than was achieved by the CHCs. However, I am absolutely confident that our proposed arrangements will be very much more powerful and effective than the current arrangements under CHCs.
	Life has indeed moved on since 1974. We have very clear views on the need for consent and public involvement and on ensuring that NHS staff can be very positive about talking to patients, involving patients and seeking patients' consent. I believe that our proposals will enable that to happen. As the noble Earl, Lord Howe, suggested, we have debated the proposals at length, and the Government have been able to develop our thinking in the light of the many debates we had during passage of the Health and Social Care Act 2001.
	Our new system does place different functions in the hands of different bodies, but I make no apologies for that. The intention is that a specifically identified function can be performed in the optimum manner. Rather than expecting a simple single organisation with limited powers to perform a complex range of functions, we are putting in place specific and appropriate mechanisms to deal with various functions that we believe are encompassed within public and patient involvement.
	On complaints, for example, rather than having one complaints officer per CHC—totalling about 200 nationally—we shall have many more people within the patient advocacy and liaison services who will be based within each NHS trust and be available whenever a patient or his relative has a complaint, and who will in many instances be able to deal with the problem on the spot. I recently visited the Luton and Dunstable NHS Trust, which has already appointed a patient advocacy and liaison service. That service has a booth in the outpatient A and E department and is already very successful in dealing with complaints and problems as they arise. I recommend that noble Lords make contact with local NHS trusts to see at first hand the effectiveness of a service that is instantly available to the public. It is obviously much better to deal with a problem immediately than to allow people to leave dissatisfied with the health service and to make a complaint subsequently. It is much more effective to try to nip problems in the bud as they arise.
	One accepts, however, that PALS will not be able to deal with every problem and that the public will seek to pursue some problems. That is where independent advocacy services will come into play. We shall have very professional people available across the country, where patients or their relatives want the service, to help people to make their complaints. I also certainly accept the comments of the noble Baroness, Lady Finlay, on the complications of the current complaints system. She will know that we are reviewing that. Nevertheless, availability across the country of effective, professional, well-trained and independent advocates—not patchy availability, as with CHCs—is one of the guarantees of the type of independence described by the noble Earl, Lord Howe.
	Patients forums will have extensive powers, including a statutory right to inspect health authority and local health board premises and local authority premises where healthcare is provided on behalf of a trust, as well as the power to make reports and recommendations for the improvement of services to the trust board. Reports will be made available to key decision makers in the community, including the local overview and scrutiny committees, and local strategic partnerships about the views and concerns of patients. If a patient forum wishes to provide and pull together the views of patients on the issues raised by the noble Earl, Lord Howe, of course it will be fully able to do so.
	The noble Baroness, Lady Thomas, asked me about the position if perhaps a primary care trust and a neighbouring patient forum disagreed with each other. Surely it is more healthy for opinions that the public are putting forward to be expressed rather than that a group of 30 people, whom very few in the community know, should purport to represent the views of the entire community. It is not tenable to believe that that would be effective. If there are disagreements between patients, as there often are about how the NHS should proceed, it is much more effective for those views to be in the public domain.
	I believe that patient forums will be effective, but we are making other changes as well, such as the establishment of overview and scrutiny committees of local government, for example. The noble Earl, Lord Howe, is disappointed that we are essentially giving them a power rather than a duty. On the first day of our debate, he chided me about over-centralisation and suggested that the Government were determined to dictate what local bodies should do. I should have thought that the noble Earl would support the general principle that it is for local government to be given the ability but for individual local authorities to make their own decisions. My experience is that local government generally takes a very close interest in health service issues. I should be very surprised if every principal local authority did not establish effective overview and scrutiny committees.
	We are addressing one of the principal criticisms that has always been levied at the health service—the so-called democratic deficit. When we come to crucial discussions and debates about changes in services to which the noble Earl referred, surely it is a much more powerful measure to give local authorities the right to refer such issues to the independent reconfiguration panel at national level, which will then advise the Secretary of State. Surely that is a very powerful indication of democratic local government having a very great influence in the future development of the National Health Service. A democratically elected local authority will be in a much more effective position to give its views on major changes of services than we currently see with community health councils.
	The only test for the Committee is to decide whether our proposals will be more powerful and effective than the position under the current community health councils. I have long been interested and passionately concerned about improving patient and public involvement in the NHS. I am absolutely convinced that we are introducing an extremely powerful package of measures, which includes patient forums, independent patient advocacy, patient advisory liaison services, local authority overview and scrutiny committees and, at national level, the Commission for Patient and Public Involvement in Health, which will also have an important role locally, enabling the work of patient forums to be co-ordinated in the way suggested by the noble Earl, Lord Howe. I look to the Committee to support those measures.

Earl Howe: I thank all noble Lords who have taken part in the debate, not least the Minister for his clear and full reply. He knows that this is not an issue on which we shall see eye to eye. He has defended the Bill as best he can. For example, he referred to the merits of patient advocacy and liaison services. I do not disagree with his analysis, but PALS are not part of the Bill, nor of the amendment to which I have been speaking.
	The Minister referred to the patchy performance of community health councils. I agree with him on that count, which is why we believe that CHCs should be reformed and strengthened, rather than abolished. He defended the separation of CHC functions on grounds broadly of modernisation and the need to distinguish different roles relating to patient involvement. I cannot accept that analysis. It seems to me that the Government's proposals for patient and public involvement follow the classic formula of divide and rule. That is what the fragmentation and filleting of CHC functions amount to. As my noble friend Lord Peyton pointed out so well, they are designed to suit the Government and not the patient. They will give Ministers an easier life.
	I am particularly sorry that the Liberal Democrats do not feel able to resume the support for CHCs that they mounted so effectively and robustly last year. It is curious that in professing to want to listen to patients and the public, the Government are deaf to the cries of the public about the abolition of CHCs. The noble Baroness, Lady Finlay, reminded us that that has not been so in Wales, or indeed, in Scotland. If CHCs are abolished under this Bill, it will leave England as the only part of the UK without a robust—

Lord Hunt of Kings Heath: I am grateful to the noble Earl for giving way, but I must say that I have not heard the cries of the general population on this issue. I have certainly heard the cries of community health councils, which is perfectly legitimate, but surely the substantive point is made in the article in the Health Service Journal by de Montfort University, which my noble friend Lady Pitkeathley quoted. CHCs have extraordinarily low visibility in the public mind. My noble friend quoted the MORI survey showing that less then 3 per cent of those making complaints had heard of the CHC. That is the problem.

Lord Clement-Jones: I wish to ask the Minister a question, although I do not know whether it is in order to do so at Committee stage. What will be the budget of the new system compared to the old one? It is sad that the Minister is complaining about the lack of visibility of CHCs when he probably argued for years in particular posts within CHCs that they were highly underfunded and did not have the resources to have higher visibility. Yet, a great many more resources will be put behind the bodies that he and his colleagues are now proposing.

Lord Hunt of Kings Heath: The budgets have not yet been fully worked through, but there will be more people. More resources will be spent on patient and public involvement as a result of the changes that we are making than was spent under community health councils.

Lord Clement-Jones: That begs the question whether the self-same resources that were devoted to CHCs could not have done a rather better job.

Lord Hunt of Kings Heath: I doubt that very much. I come back to the point that I raised earlier. Rather than putting all the different functions together into one body, it is better to separate them out so that there is the right expertise to deal with the separate functions more effectively.

Lord Clement-Jones: Better? Perhaps. I doubt it, but it will certainly be more expensive.

Earl Howe: The Minister challenged me to cite organisations that have voiced support for the concept of CHCs. I have a list of them, including the Patients Association, the National Pensioners Convention, Mencap, and others that I shall not bother to read out. Those organisations have expressed concern in writing about the abolition of CHCs and the inadequacies of the replacement structures.

Lord Hunt of Kings Heath: With respect to the noble Earl, he talked about the general public, not organisations.

Earl Howe: With respect to the Minister, he is splitting hairs. Many of those organisations represent the general public and specific interests of patients. However, I understand his concern that, to many members of the public, CHCs are invisible. I fully concede that. But that does not in any way detract from my general position; that is, that CHCs are worth conserving and worth improving.
	I do not wish to prolong this debate. It is perhaps worth reminding ourselves of something Professor Kennedy said in his report on the Bristol Royal Infirmary. He said,
	"Public consultation, whereby the public are presented with a fait accompli or their views are ignored leads to disengagement and cynicism. The net effect is frustration, loss of trust and an increasing lack of interest amongst the public in bodies and structures that are supposed to promote their interest".
	Nowhere could there be a better example of what Professor Kennedy meant than the Government's dirigiste approach to these issues. He precisely identified the risk we run with these proposals. My amendments respond to what I know for certain is a wide degree of support not only for the concept of retaining the model of the CHC but also for improving it and bringing it up to date. On an issue of such prime importance for patients I have no hesitation in seeking the opinion of the Committee.

On Question, Whether the said amendment (No. 105) shall be agreed to?
	Their Lordships divided: Contents, 90; Not-Contents, 117.

Resolved in the negative, and amendment disagreed to accordingly.
	[Amendment No. 106 not moved.]
	Clause 15 [Establishment of Patients' Forums]:

Lord Clement-Jones: moved Amendment No. 107:
	Page 20, line 38, at end insert ", and
	(c) for each Care Trust"

Lord Clement-Jones: I rise to move Amendment No. 107 and to speak at the same time to Amendment No. 112. We had some debate after the Health and Social Care Act in respect of the status of care trusts. The purpose of Amendment No. 107 is to obtain what I suspect will be similar ministerial reassurances as regards the status of care trusts.
	The purpose of Amendment No. 107 is to ensure that care trusts to be established under the Health and Social Care Act will also include patients forums. Legislative provision for the establishment of care trusts is contained in the Health and Social Care Act and it would be anomalous if patients forums were to be established for NHS acute trusts and primary care trusts, but not for care trusts themselves. The establishment of patients forums for care trusts, if regarded as separate bodies from PCTs or acute trusts, would require primary legislation, which is why they are included in the Bill.
	I turn to Amendment No. 112. Clause 16(1) allows the Secretary of State to make regulations to permit inspection of other premises from which services are provided. The purpose of subsection (1) is to provide a commitment that regulations will include care trusts and other private providers, including nursing homes. Inspection of premises controlled by care trusts need to be brought within the ambit of the clause. At present it is not clear whether the clause includes private providers such as residential homes.
	The Department of Health's document Involving Patients and the Public in Healthcare: Response to the Listening Exercise specifies new powers to inspect NHS care provided by the independent sector. Contracts between health service bodies and private providers cannot guarantee rights of inspection and give patients forums no power to enforce their rights. That is why the amendment is needed. I beg to move.

Lord Filkin: On speaking to Amendment No. 107, I can give the noble Lord the assurance he seeks. A care trust does not have a distinct legal identity. It is either an NHS trust or a PCT and therefore in either case would have a patients forum established.
	I understand what the noble Lord, Lord Clement-Jones, is seeking to achieve with Amendment No. 112, but I hope I can explain why it is unnecessary. In discussing Amendment No. 107, I explained that the legal status of care trusts as NHS trusts or primary care trusts is already provided for in Clause 16. The patients forum of an NHS trust or PCT which has become designated as a care trust will already be able to visit the relevant premises.
	I turn to the question of whether,
	"nursing homes and other privately owned facilities"
	should be required to allow patients forums access to inspect. As Members of the Committee will be aware, we have established a National Care Standards Commission to inspect nursing homes and other such places. It has its own chief executive and so on. From April 2002 it took over the regulation of social care services and private and voluntary healthcare from local authorities and health authorities. The commission will register and inspect all care homes, children's homes, domiciliary care services, residential family centres, independent fostering agencies, voluntary adoption agencies and nurses agencies as well as private and voluntary healthcare establishments.
	The commission will authorise inspectors to inspect establishments and agencies and it will interview service users and seek their views on the care they receive. It will have an important role in supporting consumers by investigating complaints about regulated services and giving the public information about services. Being a national body, it will also be able to inform government of the general availability and quality of care services.
	The commission will cover the need for inspection of nursing homes and other care facilities. To extend inspection arrangements to patients forums would be an unnecessary duplication of that valuable work. Having said that, where, for example, a doctor provided general medical services at a nursing home, that would fall within Clause 16(2) and may be provided for in regulations, giving patients forums a right of entry.
	I agree that patients forums should be able to inspect private sector premises where NHS patients are treated. In general, the relationship between the NHS and the independent sector is a contractual one, and so it is anticipated that usually forums will inspect by virtue of the contracting process. In other words, where the private sector provides NHS services in contracts with the NHS, patients forums will have a right of inspection. That will apply to all future contracts.
	There will be significant human rights implications in a general right of access to private premises. While patients forums will represent a major element of the inspection regime, they need to liase with other agencies to ensure inspections are maintained at an appropriate level.
	I share the concerns to ensure adequate representation and safeguard standards of care. But, as I hope I have demonstrated, the amendments are unnecessary and the Government resist them.

Lord Clement-Jones: I thank the Minister, particularly for his positive reply on the status of care trusts. I accept that; it is entirely consonant with replies that the noble Lord, Lord Hunt, has given in the past. However, the Minister's reply on Amendment No. 112 gives two legs to the three-legged stool and is not satisfactory. I welcome patients forums rights of inspection for healthcare in both the public and private sectors where there are contracts. But it seems anomalous that the care trusts' patients forums will have the right of inspection only in the healthcare sector and not the social care sector when they have responsibility for patient representation and consultation in both areas. The whole purpose of a care trust is the integration of health and social care; and yet, the patients forum that is applicable to that care trust will not have those powers of inspection.
	I ask the Minister, his colleagues, and, indeed, the department to reconsider the matter. It seems that there is a gap in the process, and that there are just two legs of the stool. I believe that those serving on care trust patients forums will find it fairly anomalous not to have that power of inspection in such circumstances. I do not know whether the Minister wishes to add anything further to his response and, perhaps, give us an assurance that he will further consider the matter. I see from his facial expression at present that he does intend to budge one inch on the issue. I shall, therefore, withdraw the amendment at this stage, but I may well return to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe: moved Amendment No. 108:
	Page 20, line 39, at end insert "represent the interests in the health service of patients and in particular must"

Earl Howe: In moving this amendment, I shall speak also to Amendments Nos. 109 and 130. One of the principal features of community health councils has been their overarching remit to represent the interest of patients and of the public in the health service. It is that element of their remit that I believe has enabled them to adapt to changing circumstances over the years, such as the need to develop services for those who wish to make a complaint against some aspect of the health service. If patients forums lack such a remit, it seems to me that they could find themselves acting ultra vires if ever they were to engage in activities other than those prescribed in the Bill.
	If patients forums are to be seen by the public as representing their interests, they should have a proper public profile; for example, they ought to be able—on occasions—to engage in public campaigns, whether locally or nationally, perhaps in opposing the closure of a hospital. They ought to be able to put resources behind such campaigns; they should have the ability to call for public consultations; they should be able to inspect premises, other than those specifically provided for in the Bill; and they ought to be able to initiate legal proceedings to enforce their rights, or to protect patient rights.
	Unfortunately, there have been occasions in the past when CHCs have been warned by officials in the Department of Health that they are not permitted to engage in campaigns or to criticise government policy. CHCs have always been able to see off such attempts to stifle their public voice on behalf of patients. They have done so by virtue of their wide statutory remit, which Amendment No. 108 seeks to reproduce for patients forums. One of the most well-known "public profile" activities of CHCs is casualty watch, which has a tremendous value for both patients and the health service. However, as far as I can see, neither that nor any of the other activities that I have mentioned will be permissible for patients forums or for the Commission for Patient and Public Involvement in Health. Nor are they functions that overview and scrutiny committees of local authorities will be given to undertake. Under this Bill they simply fall away.
	It is perfectly obvious to me that this is a deliberate omission. Concerted public criticism of the health service by patients will, effectively, be muffled. That is a matter of very great concern. If we look at the remit of the Commission for Patient and Public Involvement in Health, we can see that it will have very similar problems. It will not be able to engage in research, or in policy work on issues that are not in the domain of patients forums—in other words, almost any national issue. It will not be able to run or take part in campaigns; it will not be able to voice its view about national changes of policy affecting the health service; and it will not be able to take legal proceedings, as, indeed, ACHCEW did recently in a case that concerned a patient's right to confidentiality.
	I turn to Amendment No. 109. I am very troubled by the provision in Clause 15(2)(e), which permits patients forums to perform,
	"any prescribed function of the trust",
	to which it relates. That seems to me to be a recipe for generating a conflict of interest. Patients forums must be independent of the trusts to which they relate and be seen to be so. In the new paragraphs that I propose for Clause 15(2), I am suggesting that the role of representing local concerns about matters affecting health should be carried out by patients forums and not by the commission. This would mean that information about local concerns, including matters that may form the subject of referrals, are provided as necessary by patients forums to the local authority overview and scrutiny committees. Responsibility for these activities would be removed from the commission, which will instead have responsibility for the provision of support to patients forums in fulfilling these functions. Amendment No. 130 would achieve that aim, but would leave the commission with a responsibility to make representations at national level, if that were ever necessary. I beg to move.

Lord Clement-Jones: The noble Earl, Lord Howe, put the case admirably for these amendments. We come now to one of the major problems for critics of the new arrangements in the Bill. When one looks at the way in which the powers of the new bodies are defined, or can be defined, in terms of regulation, one sees that they do not have the same breadth as the powers that the CHCs currently enjoy under the legislation governing such councils. It is extremely important that these new bodies should have the ability to mount campaigns, and that they should have the ability to commission surveys. I have in mind the accident and emergency survey and the casualty watch mentioned by the noble Earl, Lord Howe. They must have the ability to take a very broad view about the way in which patients and the public interest are represented; they must not be over prescribed by the Secretary of State as regards their remit. Such amendments are most important. Noble Lords on these Benches certainly support them.

Baroness Pitkeathley: I am a little puzzled by the purpose of these amendments. I hope that my noble friend the Minister will clarify the position in his reply. I thought that the Government's aim under the Bill is to move away from the idea of a body representing patients and the public and to enable patients and the public to be very much more involved in the fabric, as it were, of the NHS. Therefore, from that point of view, it seems to me that the proposed amendments are unnecessary.
	Although it may be true that each part of the new system has less power than that currently enjoyed by the CHCs, on the whole it seems to me that they will have more power, much more accountability and, therefore, much more ability to allow the voice of the public and that of patients to come through.

Lord Clement-Jones: Perhaps I may briefly intervene. The noble Baroness has put forward a most interesting concept, if we wish to return to Athenian democracy whereby everyone gets together in the basilica. I am sure that that would be absolutely perfect in an ideal world, and that there would be no need for any representation. Indeed, patients would be directly involved in such processes. However, until that time, I regret to say that I believe that some form of representation will be necessary.

Lord Hunt of Kings Heath: It is very tempting for us to travel down the route of a debate on Athenian democracy. However, I shall resist that temptation. I believe that my noble friend is absolutely right. She has taken us back to what Kennedy said; namely, that the public should be on the inside rather than being represented by someone on the outside. That is why we believe that the essential building block to everything that we propose in relation to public and patient involvement must be the patients forums. The great advantage that they have, as opposed to the current arrangement, is that they are related to each individual trust and primary care trust. Therefore, they will be able to get very much closer to being able to put forward the varied experience and views of patients.
	On reading Clause 15(2), which relates to the establishment of patients forums, it will be seen that we are talking about very wide-ranging powers. For example, a patients forum must,
	"monitor and review the operation of services provided by, or under arrangements made by, the trust for which it is established . . . obtain the views of patients and their carers about those services and report on those views to the trust . . . provide advice, and make reports and recommendations, about matters relating to those services to the trust . . . make available to patients and their carers advice and information about those services",
	and so on. I do not believe that patient forums will have any difficulty in embracing and putting forward in the most effective way possible the views that they receive from patients and users of the service. My argument—

Lord Clement-Jones: I apologise to the Minister for the fact that I keep popping up and down. I am interested in the example given in a recent booklet produced by University College London researchers about PFI and the hospitals in Birmingham. I am sure that the Minister has read the booklet, as it is close to home. Does he really envisage patients forums for the Birmingham acute hospitals performing the same excellent function as did the CHCs in Birmingham in campaigning to find out the real cost of those PFI hospitals in circumstances after the passage of the Bill?

Lord Hunt of Kings Heath: The noble Lord tempts me down an interesting route. He knows that I chaired an independent review into the future of the city's health services. He knows, I suspect, that the City of Birmingham suffered from malaise over 20 to 30 years because of a failure of parties in the NHS to agree on the future of a new university teaching hospital.
	I do not agree, and never have done, with the views of the South Birmingham Community Health Council on those matters. Nor do I think that the great majority of Birmingham people so agree. If the city had followed the strictures of the South Birmingham Community Health Council we would not now have, as we do, the start of a process leading to a magnificent teaching hospital in the City of Birmingham.

Lord Clement-Jones: The Minister is saying, essentially, that that is not a legitimate role for the new patients forums, and that is why the Bill is drafted as it is. I can well understand the Minister's view. He is reacting against his own experience. That is why the powers of the patients forums are restricted. If the Minister admitted that, we would all be much clearer.

Lord Hunt of Kings Heath: The noble Lord misses the point I seek to make. I have no problem with the South Birmingham Community Health Council—a number of members of which I know rather well—putting forward its views. I said that I do not believe that those views represent the opinion of the great majority of people living in Birmingham.

Lord Clement-Jones: But the issue is whether the patients forums in Birmingham would be able to campaign in the same way as did the South Birmingham CHC?

Lord Hunt of Kings Heath: There are two points there. We come on to the substantive nature of the amendment. The noble Earl, Lord Howe, seeks to give a much broader power to patients forums to represent the interests of patients in the health service. My view, which perhaps experience in Birmingham shows, is that there is and has been a big problem with some CHCs where a small group of members purports to represent the interests of an entire population. I do not believe that that is possible. As a result, many CHCs which tried to do that lost credibility and influence. How can CHCs purport to represent the entire population of a large community when less than 3 per cent of those making complaints had even heard of community health councils?
	I envisage patients forums working effectively by enabling the many voices of the public—the patients—to be heard and considered, but they should not purport to represent the entire population and give a collective view on behalf of it. Alongside that we have to take account of the new role of local authorities through their overview and scrutiny committees. The noble Lord, Lord Clement-Jones, is a fierce democrat, as I am. I welcome the fact that Birmingham City Council will now have a measurably more important role in decisions on the health service in the future. Frankly, I prefer that to be done through the local ballot box than by a group of people who, with the best will in the world, cannot say, "We represent the people of the City of Birmingham".
	I turn to Amendment No. 109. I am somewhat concerned with one aspect of it. First, the noble Earl, Lord Howe, expressed concern about the clause, which removes the forums' function of taking over a patient advocacy and liaison service in prescribed circumstances set out in Clause 15(2)(e). While I would anticipate that being a rare occurrence, we regard PALS as being an important service, critical to patients and their families. We believe that where a forum considers that the trust is failing to provide an adequate service, it should be able to do something about it. That is an example of how effective we believe patients forums will be in future.
	Perhaps I may explain to the noble Earl, Lord Howe, how we think that would work. If, for instance, a forum were concerned about the quality of the PALS service, it would report that to the board of the trust or the primary care trust. Incidentally, PALS will be provided within primary care trusts as well as within other NHS trusts. If there is no improvement, it will report again, copying its report to the strategic health authority. If again there is no improvement, the forum will report the matter to the Secretary of State. The Secretary of State would then need to make a decision about what action he takes. He may choose to direct the trust to take action. He may also decide that the forum should take over responsibility for the PALS. If the latter, the forum will make arrangements for the provision of the PALS, perhaps arranging for another trust PALS to take over the service, but with the host forum retaining responsibility for it, or a voluntary sector organisation taking over PALS but reporting to the forum.
	It is not intended that forums will provide the PALS services, as clearly they would not be equipped or resourced to do so. However, it is making abundantly clear to individual NHS trusts and primary care trusts that if they are not providing a satisfactory PALS service, their local patients forums, far from being a poodle, are in a very good position to see that something is done about it.
	As regards Amendment No. 130, we do not accept that what is contained in Clause 19(2) should be replaced in the way the noble Earl suggests. I agree that the issue of patients forums collaborating and working together is important. However, we feel that the commission, working at local level, will be best placed to take an overview of the health service across the whole health economy area because individual forums, as the noble Earl suggests, are trust and primary care trust specific. The advantage of going down the route we suggest is that the commission working at local level will have the ability, staff resources and clear duty to ensure that indeed the various patients forums work together on specific issues, as the noble Earl suggested needs to happen.
	Amendment No. 130 is consequent to Amendment No. 109. As I said, we remain convinced that the engagement of the wider public and representation of their views should be to the local commission. As regards the arguments raised by the noble Earl about the role of the national commission, the arguments I have deployed concerning the wider public interest are as relevant to the national commission as they are to local forums. At the end of the day, the more focused we are—as we are in the various arrangements we are setting out—the less opportunity there is for confusion or for a situation in which neither the commission nor the patients forums will be effective or credible because they seek to do something which they will not be able to do effectively.

Baroness Hanham: Perhaps I may intervene with a question that has been in the back of my mind during this whole discussion about patients forums. As chairman of a National Health Service acute trust I would put the other side of the point.
	As the discussion continues I am conscious that there is a raft of organisations which will be able to encourage and enable patients to make complaints. I do not think that there is any problem with that. I am a little bothered about the other side of the equation, which is the ability and the resources to deal with the complaints. I say that because I am conscious of the pressure and the difficulties for staff dealing with many of the complaints which come to an NHS trust. Some of them are very difficult; some are very sad situations; and some involve an enormous amount of effort and work for those employed by the trust. This is not a job to which people rush. It is not one for which they may have received extensive training. Before we put in the raft of organisations which will beaver and burrow to ensure that everyone has the ability to make a complaint—however minor, but, perhaps more importantly, a major one requiring some investigation—can the Minister say what he proposes for the trusts which are already dealing with substantial numbers of complaints and which would find it helpful to have additional resources in order to deal with them?

Lord Hunt of Kings Heath: First, I welcome the intervention of the noble Baroness who brings a wealth of experience from running a busy NHS trust. It is always helpful to have that practical perspective.
	I certainly agree with the noble Baroness that the current complaints system causes a great deal of work to be undertaken within individual trusts. I think that there is a variable quality about the way that trusts deal with them. I would also accept that there are views that the current complaints system is rather bureaucratic and cumbersome. She will know that we are undertaking a review of it.
	I also accept that we need to do more to help trusts, not just in relation to the way they handle complaints, but more generally in responding to the inevitable increase in public and patient involvement in the health service and the inevitable increase in the scrutiny they will come under. That is life in the 21st century. It is life for all public organisations. The NHS will not be absolved from that.
	I have been in discussion with the Modernisation Agency and the Leadership Centre on this matter to see what further support we can give to trusts in order to rise to the challenge of enhanced public and patient involvement. I should be happy to share some of my thoughts on the matter by writing to the noble Baroness.
	However, I would also say that I am strongly of the view that the arrangements that we are putting in place will enable the NHS to deal with complaints in a more effective way. The development of the PAL service will ensure that many matters which, at the moment, end up in the complaints system will have been dealt with. I referred earlier to my experience of the PAL service in Luton. There is no doubt about the reduction in the number of formal complaints because it has been able to deal with issues as they arise. As we know, if one can deal with something there and then, many patients may feel that there is no need to go further. However, if the patient remains dissatisfied, we have established a very professional complaints service through independent advocacy. That will benefit the NHS trust because it will enable patients to articulate their complaints in the clearest way possible. It will enable the trust to deal with and focus on the issues being raised. The benefit of a patients forum is that it will be able to have face-to-face meetings with the trust board. If it has concerns about the operation of complaints within an individual trust, it will be able to bring to the trust board chapter and verse about the problems that are arising. I think that the trust board will find that extremely helpful.
	I do not underestimate the challenges that trust boards will face. But I think that at the end of the day with the help and support that we can give them and with the undoubted helpful influence of patients forums and the PAL service, we will end up with a win-win situation where complaints are dealt with more promptly and more effectively and where the trust board will have the help of a patient forum in developing ideas about how one deals with these issues in the future.

Baroness Hanham: I accept entirely what the Minister says about dealing with complaints at the outset and getting rid of them. I totally support that. I think that any reasonable trust does that now in the best way that it can. I am not really bothered about the trust board either. I am much more concerned about the people at the front line who deal with what are often extremely difficult issues. If they have a much more professional service coming at them from one side, they will be required to produce a much more professional service from the trust side. It is really a question of whether resources will be available to provide training and access to legal advice in order to be able to deal with the system or whether the trusts will be left on their own to deal with the financial aspects of what could potentially—at least in the initial stages—be resource intensive?

Lord Hunt of Kings Heath: As the noble Baroness will know, I am constantly being urged to let trusts get on with matters. We do expect trusts to be able to rise to challenges. But, as I have said, I am looking at the role of the Leadership Centre and the Modernisation Agency to see what support and advice we can give. I suspect that the work of the Commission for Patient and Public Involvement in Health—although expressly it will be giving support to patients forums—will be an extremely important help to trusts themselves. They will be able to learn from the kind of casework and experience that the commission will identify through the work of patients forums and their commission staff at local levels. I shall be happy to meet with the noble Baroness to discuss this matter and to see what further practical support we might give to NHS trusts. That of course does not mean money. In terms of finances, it is right that that should come from their general allocations.

Baroness Hanham: Resources are not always money, as the Minister knows.

Earl Howe: This has been a useful debate. I thank all Members of the Committee who have taken part. I particularly thank the Minister for the illumination that he has shed on a number of aspects relating to the functions of patients forums. I think that he has exposed a fundamental difference of approach in the way that the Government look at these matters. The internalisation of patient involvement, as the noble Baroness, Lady Pitkeathley, made clear, is central to these proposals.
	A danger in the Government's approach is that the public needs to have confidence in a patients forum. If a patients forum is based within a trust, that is one thing, but the patients forums must not be "of" the NHS. That may be a distinction which the public will lose sight of if we are not very careful.
	To revert to the substance of Amendment No. 108, the questioning by the noble Lord, Lord Clement-Jones, exposed successfully my own conclusion that a great deal is missing in the Bill when compared to the powers enjoyed by community health councils. We shall feel the want of that when these measures are passed into law, as I believe they will be.

Lord Hunt of Kings Heath: I am grateful to the noble Earl for giving way. Does he accept that we cannot simply compare powers between CHCs, on the one hand, and patients forums, on the other; we must compare CHCs against the whole panoply of our proposed measures in order to draw a broad comparison?

Earl Howe: Yes, of course I accept that, but I still believe that if we take that comparison, a number of gaps remain. We may address those when we discuss a later group of amendments headed by Amendment No. 101, so I do not want to anticipate them now.
	I agree with the Minister that patients forums will not purport to represent the entire local population. The overview and scrutiny committees are there to perform that function. The only problem is that there will be no guarantee under the Bill, as there is at present, that the committees will scrutinise what they are given to scrutinise. As far as I can make out, that power is entirely discretionary.
	Some issues may not be of prime interest to local voters but be vital to users of services. I am thinking especially of mental health service users, for example, who may not even vote. They will have little scope to make their voice heard other than through their patients forums, and they may not get far with them.
	I should like to comment briefly on the Minister's reply to Amendment No. 109. I am not sure why the Government are seeking to retain the power for patients forums to take over PALS. Patients forums will have a largely volunteer structure and I should have thought that the Commission for Patient and Public Involvement in Health would be a more natural home for PALS than the patients forums.
	I am also unclear to what other functions the power may apply. Would the forum concerned have any say were such a decision in the offing? What guarantee is there that the clause will not be used to pass the buck, if I may put it that way, on the Section 11 duty—the NHS consultation duty—to patients forums, making them effectively the market research departments of the trust? I shall have to consider carefully what the Minister has said between now and Report.
	Turning briefly to Amendment No. 130, I was prompted to table it by a comment made by a colleague of the Minister's, Hazel Blears. I am advised that her office classified casualty watch as a discretionary activity. If that is the Government's view, that is a great shame. As I pointed out earlier, casualty watch is a service that is valued not only within the NHS but much more widely.
	We shall have to return to the matter later, but in the knowledge that we have much more to debate this evening, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 109 not moved.]

Lord Harris of Haringey: moved Amendment No. 109A,
	Page 21, line 11, at end insert—
	"( ) A Patients' Forum established under subsection (1)(b) must—
	(a) in monitoring and reviewing the operation of services under arrangements made by the trust for which it is established, and provided by a trust for which another Patients' Forum is established, have regard to the views expressed by that Patients' Forum,
	(b) obtain the views of the public living in the area for which services are provided or arranged by the trust for which it is established about the provision of health care services and the state of the public health in that area, and
	(c) make a report on the views obtained under paragraph (b) above at least once a year to the trust for which it is established and to the relevant overview and scrutiny committee."

Lord Harris of Haringey: During consideration of the Bill, I have already expressed my view that the Government have moved an enormous way to answer some of the criticisms of their earlier proposals for representing and involving the public and patients in the NHS. However, a number of gaps remain and the amendment is intended to fill some of them.
	The first element of the amendment is to recognise that the patients forums that relate to primary care trusts will be different to those that relate to other trusts. The reason for that is that they will relate to a trust responsible not only for the delivery of certain primary care services but for arranging for other services to be provided—essentially, they will be local purchasers. Those trusts will also be the only ones that relate to a specific catchment area and population. So the nature of the work of their patients forums will be definably different from that of those that relate to other trusts.
	That is a positive factor that should be recognised in the Bill. One of the remaining gaps in the Government's proposals is that there is no mechanism to enable the co-ordination at local level of patients' views, nothing to permit the different strands to be put together. Those strands should be brought together in the patients forum that relates to the primary care trust, which in turn relates to a specific population and area. The amendment would require a patients forum relating to a primary care trust, in considering any services arranged by that trust but for which another patients forum existed, to take into account the views of that other patients forum, so that such co-ordination could occur.
	The other element of the amendment is that there should be a clearly laid out mechanism for such patients forums to obtain the views of the public living in the area. That is because they will relate to a trust with a defined catchment area and population. After obtaining those views, the patients forums will be obliged to report on them at least once a year—although I would expect that it would report far more frequently than that—to both the trust for which it is established and which arranges many of the services for the population of that area and the relevant overview and scrutiny committee.
	I accept that my noble friend will no doubt tell us that there are all sorts of flaws in the drafting of the amendment, but we have plenty of opportunity to deal with that later. The amendment is intended to ensure that it is clear at local level which patients forum is co-ordinating which issues and that there is a patients forum clearly responsible for obtaining the views of the local population, articulating them and putting them forward. I listened with great interest to the exchange between the noble Lord, Lord Clement-Jones, and my noble friend about the adequacy or otherwise of the views expressed by the South Birmingham Community Health Council, of which I have fond memories. The amendment would require patients forums to put forward in a balanced and properly reflective way the views of the local population and community concerned. I commend the amendment to the Committee and I beg to move.

Lord Hunt of Kings Heath: I am grateful to my noble friend, especially for his acknowledgement that the Government have moved to meet some of the concerns that he expressed about patient and public involvement when we debated those matters during the last Session. I also understand clearly what he seeks to accomplish, and have a great deal of sympathy with the broad thrust of it. I do not criticise him on the grounds of the technical merits of the amendment. Rather, we have already made provision in the Bill for the substantive issues that he raises.
	My noble friend's intention is to make explicit in the Bill the circumstances in which PCT patients forums should work together with other forums, specifically where services are arranged by a PCT that is covered by one forum and provided for by another trust, which is covered by another forum. Secondly, my noble friend's amendment would require patients forums to obtain the views of the public not only on local healthcare services but on public healthcare services. That is an important issue. It would also require forums to make annual reports to local overview and scrutiny committees. All those matters are covered, one way or another, in the Bill.
	I agree with my noble friend that it is vital that the forums work together, not least so that they do not duplicate activity. Perhaps more significantly, they should be able to organise themselves—if necessary with the help of the commission—to ensure that their activities reflect the way in which the NHS works and what a typical patient journey looks like.
	We will provide in regulations the circumstances in which patients forums should work together. That is provided for in Clause 15(5). The local branches of the commission will assist forums to work together and will be ideally placed to identify areas where there may be a need for joint activity. The reservation that I have about my noble friend's approach is that it would create a hierarchy of patients forum status. The primary care trust patients forum might be seen to have primacy over other patients forums.
	I accept, of course, that PCT forums will have an additional degree of insight and awareness of the patient's role, due to their dual role of provider and commissioner. As such, they will have a good deal to offer the collective discussions that the local branch of the commission will encourage. However, it goes without saying that PCT forums will have a different role from NHS trust forums simply because of the different roles of trusts and primary care trusts. We should be wary of creating what might become a hierarchy of different types of patient forum.
	The issue of whether primary care trusts should have a specific role in relation to public health is already covered in Clause 15(2), which provides that patients forums,
	"will monitor and review the operation of services provided by, or under arrangements made by, the trust for which it is established".
	Given that primary care trusts will be the principal public health authorities in the NHS, the patient forum of a primary care trust is well able to discharge the responsibility relating to public health that my noble friend suggested.
	The final point—an important one—relates to the issue of whether forums can make reports to trusts and overview and scrutiny committees. That is covered in several places in the Bill already. Clause 15(2)(c) says that forums shall make annual reports to the trust for which they are established. Clause 17(2) places a duty on forums to submit annual reports to, among others, trusts and overview and scrutiny committees. Clause 18 provides the Secretary of State with regulation-making powers to set out more details about the responsibilities of patients forums, with regard to making reports to overview and scrutiny committees.
	I shall be interested to hear my noble friend's further thoughts, but I hope that he will recognise that, in the current terms of the Bill, we seek to meet many of the points that he has raised in this important group of amendments.

Lord Harris of Haringey: I am grateful to my noble friend for his response. I accept that it is possible to interpret other parts of the Bill in the way in which he said and that it would be possible for regulations to deal with the issues. However, it would be helpful to have something in the Bill, simply because of the protection that it would afford to such important functions.
	I shall not be too upset if the consequence of the amendment is to demonstrate that there are two classes of patients forum. I suspect that, had those who drafted the Bill not wanted to create two classes of patients forums, they would have drafted it in another way. The forums are set up in different ways under paragraphs (a) and (b) of Clause 15(1). In those circumstances, it should be recognised that a particular set of functions fall on the patients forum that relates to the primary care trust.
	I shall read what my noble friend said with interest, and I hope that, before Report, it might be possible for us to have some indication of the content of the various sets of regulations to which he referred. That would give us a way of judging whether the points have been adequately addressed. It remains my preference for such matters to be addressed in the Bill. At this stage, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 15 agreed to.

Baroness Noakes: moved Amendment No. 110:
	After Clause 15, insert the following new clause—
	"PATIENTS' FORUM MEMBERS
	(1) No member of a Patients' Forum may be appointed as a director of an NHS trust or a member of a Primary Care Trust to which the Patients' Forum relates unless that person has been recommended for appointment by the NHS Appointments Commission.
	(2) Where a member of a Patients' Forum is also a director of an NHS trust or a member of a Primary Care Trust to which the Patients' Forum relates, his responsibilities as a director of the NHS trust or member of the Primary Care Trust shall be the same as those of any other director or member of such trust."

Baroness Noakes: The amendment would add a new clause, the first part of which would create a requirement for any patients forum appointment to a primary care trust to be made on the recommendation of the NHS Appointments Commission.
	Although there is nothing in the Bill that requires the appointment of patients forum representatives to PCTs or NHS trusts, I understand that the Government have stated their intention to do that. There are grave concerns about that among NHS trusts, and they were expressed forcefully by my noble friend Lady Hanham at Second Reading. There is a worry that patients forum people will not be subject to the selection procedures operated by the NHS Appointments Commission and that—not to put too fine a point on it—they will not be of the quality established by the conventional selection procedures. I imagine that PCTs will have similar concerns.
	The second part of the amendment makes it clear that a person appointed from a patients forum has exactly the same responsibilities as other NHS trust directors or PCT members. That is a response to the concerns—also expressed by my noble friend Lady Hanham at Second Reading—that the patients forum members will not regard themselves as full corporate members of the NHS trusts or PCTs. There is a danger that they will see themselves as patients forum representatives and not as part of a whole corporate team, carrying collective responsibility for the affairs of the NHS trust or PCT. There is grave concern in the NHS about that.
	The NHS Confederation fully supports the amendment. Nothing short of a statutory declaration that patients forum representatives must behave in exactly the same way as other directors or members will deal with the point. I beg to move.

Lord Clement-Jones: I support the amendment. It is interesting that the NHS Confederation, as the noble Baroness, Lady Noakes, said, supports the amendment. There are concerns relating to the role and selection of the patients forum non-executive director on the board of each NHS trust and PCT.
	It is important that the patients forum-elected non-executive director becomes an ordinary board member with full corporate responsibility and that he or she fully understands the implications of the need for corporate responsibility. Failure to ensure that could inhibit the good operation of the board. That is an important factor. It is also important that the patients forum-elected non-executive meets Nolan criteria and that individuals go through a selection process similar to that for the other non-executives.
	It is right that all non-executive board members should bring the requisite competencies to the board. For that reason, we support the amendment.

Baroness Hanham: I am extremely grateful to my noble friend Lady Noakes for having taken on the burden of working out these amendments and putting them forward. Noble Lords will recall that I have been banging a rather lone drum on the question of a patients forum non-executive director on the board of a trust through our debate on Second Reading and in previous discussions. The amendments very much encompass my concerns. I am also grateful for the support at last of the noble Lord, Lord Clement-Jones—as I have said, I have been on my own with regard to this point until now—as well as that of the NHS Confederation.
	It is extremely important that we get this right. If someone is to be imposed on a board, there must be a process by which the board can accept the appointment. On Second Reading, the Minister was kind enough to suggest that I should talk to him not only about my general concerns, but also about the detail here. What has been lacking all along has been a general acceptance that a great many details have to be worked out. I should like to acknowledge the fact that the Minister was kind enough to spend some time with me over this. I hope that that time was fruitful for him and that now I shall find that it will have been fruitful for me.
	Briefly, my concerns remain the same and I hope that the Minister will be able to respond to them. At present, non-executive directors are appointed to a board by the new NHS Appointments Commission. Formerly they came via a different route, but they have always been appointed either by the Secretary of State, or now by the NHS Appointments Commission. It is absolutely inconceivable to me that the non-executive directors of patients forums should in some way by-pass that process or, indeed, that the chairman of the board should have no role in seeing or otherwise, and accepting or otherwise, who is to be appointed. The NHS Appointments Commission could play an important role here by ensuring that there was some effective choice before the chairman of the board. I hope very much that now that will be part and parcel of any new proposals.
	I am also concerned about several other elements. I understand that the patients forum representative will not be supernumerary to other non-executives. At present, there are five non-executive directors on a board, or six if, as I have, there is a university representative as well. When we have discussed this on previous occasions, I have always been led to understand that one patients forum representative would replace one of the non-executives. The question lies in how and when that is done.
	Non-executive directors are usually appointed for a minimum of two, four or eight years. The two-year appointments almost always carry on for six years, while the four-year appointments, by definition, often carry on for eight years. That extended experience is absolutely invaluable to the stability of a board and helps it to continue and develop. What would be unacceptable and very difficult to understand would be a situation where someone is parachuted in and replaces, in the short term, a person already in place, who has already been through the "Nolanisation" process referred to earlier, who has been approved by the NHS Appointments Commission and who has been appointed for a set term with the possible expectation of being reappointed. If that were allowed to happen, it would set a poor example and establish a bad precedent. I hope that the Minister will be able to reassure me on that point.
	As our discussions on patients forums have developed today, I have become increasingly concerned about exactly to whom this representative believes that he or she will be accountable. This matter forms the second part of the amendment moved by my noble friend Lady Noakes. If there is to be a non-executive director, it would be quite wrong for the accountability of that non-executive director not to rest with the board; that is, that they might have a completely different line of accountability out to someone else. It would make the corporate role of non-executive directors very difficult to manage. The last thing one would want from such a representative or, indeed, for such a representative, would be for them ever to be treated with suspicion by the rest of the board. We must ensure that the incorporation is carried out in a way which leaves no rancour or worry for other members of the board. They must be assured that the person forms a full part of the corporate body.
	That point becomes even more important when one considers the inspectoral role of the patients forum. Again, it is quite possible that a patients forum with such a non-executive director could find itself at odds with a trust board because either the forum or the non-executive director would be the bearer of an adverse report. I would not expect that to happen in my case, but I see that it could happen in some trusts, either fairly or unfairly.
	I hope that we shall see a little more roundedness introduced into this appointment. I look forward to what the Minister has to say. However, although I do not know whether I have a right, I shall reserve my right to respond once more before he sits down if I am not totally content with his remarks.

Baroness Masham of Ilton: Having listened to the noble Baroness, Lady Hanham, perhaps I may ask the Minister a question. Will the patients forum representative be paid if he or she replaces a non-executive director, and will the appointee have time to do both jobs?

Lord Hunt of Kings Heath: I am grateful to the noble Baroness, Lady Noakes, for giving us a further opportunity to debate this matter. I recognise that, in particular for the chairs of NHS trusts, the appointment of a patients forum non-executive director to the board of a trust represents a challenge. However, my contention would be that the NHS is not unused to appointments such as these. For example, one of my first introductions to the NHS was in the mid 1970s as an appointee of Oxford City Council to the board of the Oxfordshire Area Health Authority. We know that, in general, NHS authorities are composed of people who come from different backgrounds and have different interests, but once they arrive at the boardroom they should be expected to take part in collective responsibility. Ultimately, I do not see any difference between the patients forum person and other members of the board of a trust—that is, those coming from a variety of backgrounds and interests.
	I turn to the point raised by the noble Baroness, Lady Masham. The person appointed to the patients forum will receive the honorarium that non-executives generally receive for serving on NHS trust boards. With regard to timing, I fully recognise the major time commitment to be made by non-executive directors. We are very grateful for their contribution and obviously time is a factor that must be considered by the members of the patients forum when they come to discuss who should go forward for nomination. It is one of the criteria for successful appointment. A candidate must be able to devote the time required to meet the responsibilities of the job.
	Having said that by way of introduction, I hope that I can reassure noble Lords that we have in place the mechanisms to make this work effectively. First, let me make it clear that the NHS Appointments Commission is the appointing body for all non-executive appointments to NHS trusts and PCT boards. We have made our intention clear, through the listening exercise and so far during the passage of the Bill, that patients forums will each elect one of their members to go forward to the NHS Appointments Commission for appointment through the standard process. That will mirror the way in which university representatives are currently appointed.
	The forum nominee will be assessed by the NHS Appointments Commission against the same criteria of probity and expertise used in the selection of other board members. We can expect patients forums to take this into account when electing their nominees. I am confident that we will see very high quality candidates put forward.
	In the exceptional circumstance that, for some reason, the nominee elected by the patients forum is found wanting in some important respect, the appointments commission will be expected to reject that nomination. The patients forum then will be required to carry out another election. I do not expect that to happen very often, but it is an important safeguard.
	Once appointed, the new board member will be expected to accept corporate responsibility for board decisions in the same way as any other non-executive member. That is very important and I am happy to reaffirm that principle. They will undergo the same induction process that is given to other board members to explain exactly what corporate responsibility means and to help them to be effective across the range of board member responsibilities.
	I do not depart from the point made by the noble Baroness, Lady Hanham. For the chairs of trusts there will be challenges ahead to ensure that corporate responsibility is discharged and that the patients forum non-executive is able to play a full part in the discussions of the board. Surely the value of having a patients forum representative on the board is that it will be a powerful route through which patients' views and issues of direct relevance and interest to patients are brought to the decision-making table. Surely that is another example of the inclusive approach recommended by Professor Kennedy in the Bristol inquiry report.
	The noble Baroness, Lady Hanham, asked about the position of current non-executives on trust boards who may be affected by the appointment of a new patients forum non-executive. I can go some way, but not the whole way, that she would like me to go. Clearly someone who is already on a board will complete his or her current terms of office. In the future, we will have a fluid situation. While it may be expected that most trust boards will continue to have five non-executive directors in the fullness of time—including the patients forum non-executive director—I should remind the noble Baroness that the trust regulations 1990, as amended, allow NHS trust boards to have up to seven non-executive directors. I accept that, like her own trust board, the majority of NHS trust boards have five members, but there is some flexibility in this issue. No doubt we shall need to reflect on the matter in the future.
	I hope that I have gone at least some way towards convincing the Committee that we accept that there are challenges. We believe that the role of the appointments commission ought to reassure the noble Baronesses on the substantive points that have been raised, but, ultimately, the advantage of having a patients forum non-executive on the board will, in the round, bring distinct advantages to the NHS and to the individual trust boards.

Baroness Hanham: I believe and hope that the Minister will acknowledge that I have never at any stage said that I did not think there should be a patients forum representative. I have been seeking all the way through to ensure that there is not only a proper process but a complete understanding of the accountability of this person.
	I believe that we are beginning to dig ourselves out of a hole. Certainly what the Minister is saying is getting better as we progress. When we first started there was no question of the appointments commission having any role in this, so I am glad that that has now been accepted.
	I was equally interested to hear about the seven voting members on a board because that has the potential—even with a trust that has a university representative—of easing-in a patients forum representative non-executive director without causing too many subsequent ripples. Indeed, at some stage it may be decided that there can be an additional member if seven are allowed. The Minister may wish to continue this discussion in the light of experience as we see how matters progress.
	I am glad that the appointments commission will be able to reject a candidate. However, I am conscious that the appointments commission will also be responsible for the appointment of the patients forum candidates. Can the Minister reassure me that once the decision is made as to who the patients forum wants to be elected, there will then be a separate consideration by the National Health Service Appointments Commission of that person? There may or may not be quite a difference between being a member of a patients forum and a member of a board, but we need two processes in this regard.

Lord Hunt of Kings Heath: There will be different processes. The appointment of patients forum members will be the responsibility of the national commission and the bulk of the work will be carried out by its local staff. But it will be done under the auspices of the appointments commission, which will set the standards under which such appointments take place.
	I accept that the noble Baroness was not seeking to criticise the appointment of patients forum non-executives. I fully accept that from her experience as a trust board chair she wants to make sure that the process works as effectively as possible. I will be happy to continue the dialogue over the next few weeks as we debate the Bill to ensure that we make as clear as we can how we expect the system to work.
	Perhaps it would help if I gave some examples of where a patients forum representative might be rejected by the appointments commission. This might happen where a candidate lives outside a PCT area; where the candidate has been convicted of a criminal offence; where the candidate is not legally entitled to work in the UK; where the candidate would not be able to be available for approximately five days every month. That is a very important backstop.

Baroness Hanham: I am grateful to the Minister for that explanation. I shall read what he said—and I may take up his offer to come back on this issue yet again—but certainly, for me, his reply was helpful.
	This is a completely different appointment to a board than any there has ever been. Like the Minister, I was an elected member on an area health authority, but I did not have inspectorial rights. This patients forum director will come from an organisation which has the right of inspection and criticism, and now a right to report to the overview and scrutiny committee. Such an appointment is potentially more contentious—it need not be—both for the board and the individual. That is my last word on the subject. It is a role that we may need to finesse a little—and, sadly, we may have to do so in the light of experience—but I hope not to have to come back to this issue. If I do, I hope that the Minister will allow me the latitude to do so at a later stage.

Baroness Noakes: I thank noble Lords who have taken part in the debate—particularly the noble Lord, Lord Clement-Jones, and my noble friend Lady Hanham—and the noble Baroness, Lady Masham, for her interesting question. I thank the Minister for his response, in particular for his affirmation of the involvement of the NHS Appointments Commission.
	I was almost convinced until the Minister gave examples of the grounds on which a candidate would be rejected. Having told us firmly that candidates could be rejected— which sounded excellent—the grounds for rejection seem technical—for example, not living in the area rather than not meeting the criteria for being a good contributor to an NHS trust. I should like to press the Minister to say whether or not a patients forum representative could be rejected if that person did not bring anything to the corporate team in terms of directing an NHS trust. However, that point apart, the Minister's response in that area was very helpful.
	It was also helpful that he reaffirmed that each director of a trust or member of a PCT would have full corporate responsibility. However, there must remain concerns about this because these people will be representatives of organisations with inspectorial rights. Going back to the position of the council-nominated members of health authorities, one of the reasons that they disappeared from the scene was because it was not felt that they contributed in a corporate way. On a universal basis there are honourable exceptions—including noble Lords here present.
	I wish to consider the Minister's reply and possibly return to the point. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones: moved Amendment No. 111:
	Before Clause 16, insert the following new clause—
	"ESTABLISHMENT OF PATIENTS' COUNCILS
	(1) The Secretary of State shall, subject to subsection (3), establish a body to be known as a Patients' Council ("Council") in England in each area for which an overview and scrutiny committee has been established under section 7 of the Health and Social Care Act 2001 (c. 15) (functions of overview and scrutiny committees).
	(2) Each Council shall be appointed from among members of the relevant Primary Care Trust Patients' Forums and NHS Trust Patients' Forums operating in that area and representatives from the relevant community interest groups.
	(3) Where it appears to the Secretary of State that there is a need to establish a Council for an area other than that represented by a local authority with overview and scrutiny functions, he shall, after local consultation, establish a Council for such other area as appears to him will meet the needs of the local community.
	(4) The functions of a Council are to represent the interests in the health service of the public in its district and in particular to—
	(a) facilitate the co-ordination of the activities of member Patients' Forums including by the provision of staff and services to Patients' Forums,
	(b) provide or make arrangements for the provision of services under section 19A of the National Health Service Act 1977 (c. 49) (independent advocacy services) at the direction of the Commission for Patient and Public Involvement in Health,
	(c) represent to persons and bodies which exercise functions in its area (including in particular the overview and scrutiny committees and the joint overview and scrutiny committees referred to in sections 7, 8 and 10 of the Health and Social Care Act 2001) the views of members of the public in its area about matters affecting their health, and
	(d) advise the bodies listed in subsection (5) on involvement of the public in its area in consultations or processes leading (or potentially leading) to decisions by those bodies or the formulation of policies by them, which would or might affect (whether directly or not) the health of those members of the public, monitor the effectiveness of this involvement and co-operate with the Commission for Patient and Public Involvement in Health in carrying out this function.
	(5) The bodies referred to in subsection (4)(d) are—
	(a) health service bodies,
	(b) other public bodies, and
	(c) others providing services to the public or a section of the public.
	(6) The Secretary of State shall, following consultation with the Association of Community Health Councils for England and Wales, Community Health Councils, patients' and carers' organisations and the wider community, by regulation make provision in relation to Councils as to—
	(a) the Patients' Forums and other community interest groups from which members of the Council are to be appointed,
	(b) any qualification or disqualification from membership,
	(c) terms of appointment,
	(d) the proceedings of a Council,
	(e) the discharge of any functions of a Council by a committee of the Council or by a joint committee appointed with another Council,
	(f) the circumstances in which Councils will co-operate with each other in the exercise of their functions and exercise functions jointly with one or more other Councils,
	(g) funding of Councils and the provision of staff, premises and other facilities,
	(h) the preparation and publication by a Council of annual accounts,
	(i) the provision of information (including descriptions of information which are or are not to be provided) to a Council by an NHS trust, a Primary Care Trust, a Strategic Health Authority, the Commission for Patient and Public Involvement in Health, the relevant local authorities or a person providing independent advocacy services (within the meaning given by section 19A of the National Health Service Act 1977),
	(j) the provision of information by a Council to another person,
	(k) the preparation and publication of reports by Councils,
	(l) the furnishing and publication by NHS trusts, Primary Care Trusts, Strategic Health Authorities and overview and scrutiny committees of comments on reports or recommendations of Councils, and
	(m) the referral of matters of a prescribed description to any overview and scrutiny committee, the relevant Strategic Health Authority, the Commission for Patient and Public Involvement in Health or the Secretary of State for Health.
	(7) The regulations shall also include provision applying or corresponding to any provision of Part 5A of the Local Government Act 1970 (c. 70) (access to meetings and documents).
	(8) In section 21(10) of the Local Government Act 2000 (c. 22) (overview and scrutiny committees) after "members of the authority" there shall be inserted "and shall include a person appointed by the relevant Patients' Council".
	(9) In paragraph 1 Schedule 5 to the National Health Service Act 1977 (c. 49), as amended by the Health Authorities Act 1995 (c. 17) after sub-paragraph (c) there is inserted—
	"(d) persons appointed by the relevant Patients' Councils."."

Lord Clement-Jones: The noble Lord, Lord Harris, was polite enough to talk about gaps in respect of the provisions relating to patient and public involvement. The situation is rather more serious. The word "chasm" would perhaps be more appropriate.
	The amendment would establish patients' councils to integrate the work of the patients forums operating in their areas—which in the view of my noble friends and many of your Lordships is a major matter to be put right in the Bill. Amendment No. 111 is similar to that tabled by David Hinchliffe, chairman of the Select Committee on Health in another place, during the passage of the Health and Social Care Bill prior to the last general election—which enjoyed cross-party support in both Houses.
	The Department of Health response to the listening exercise stated that patients' councils provided a sensible option for facilitating the co-ordination of patients and public involvement mechanisms—but the proposals do not build on that concept, which is surprising in view of those words.
	The amendment provides for the creation of patients' councils as a statutory means of integrating the work of patients forums in a local area. I listened with some incredulity to the Minister talking about how the various forums would, by regulation, track the patient's journey and make sure that it was covered. The Minister seemed to be making a good case for patients' councils but I shall scrutinise Hansard to see whether I can pray his words in aid even further at the next stages.
	The local areas covered by patients' councils could be coterminous with a local authority overview and scrutiny committee and provide support to its scrutiny function, although, following discussion, some other area may be preferred. For example, there may be more than one patients' council in a large county. Regulations would provide for membership of relevant forums in other community groups, which may include local strategic partnerships. As membership bodies, patients' councils would be accountable to patients forums. With lay membership and statutory duties, they would also be more accountable to local patients and communities than the Government's proposed commission local networks. As independent statutory bodies, they would help to reinforce the independence of patients forums at local level.
	The Government's model is extremely top down, particularly in the workings of the commission. In theory, there is no reason for national or local emanations of the commission to take any notice of the views of the local community on any issue. It is not the commission's job to represent local communities. It is unlikely that local communities would be able to develop the same positive relationship with their local commission as they have in many cases with community health councils. Communities will not own the commission or direct its work—and certainly will not be represented on it.
	Patients' councils would operate as a local base for staff provided by the commission for patient and public involvement. Support would be provided for patients forums as needed. Patients' councils would also be able to provide commission advocacy for people wishing to make a complaint about the NHS, in line with the provisions for the independent complaints advocacy service enshrined in the Health and Social Care Act 2001. Placing the advocacy function with patients' councils would inform the rest of their work. Wider problems in the local health service could be recognised more quickly.
	As well as providing an identifiable locus where the public could raise concerns about the local health service, patients' councils could act as one-stop shops where the public could get independent information and advice. Community health councils currently provide easily accessible one-stop shops. If they are abolished, the public will face a confusing array of fragmented bodies from which to seek help.
	The role of representing local concerns about matters affecting health would be taken by patients' councils rather than the commission. Information about local concerns, including matters that may form the subject of referrals, would be provided as necessary to the local authority overview and scrutiny committee. A local independent statutory body would take responsibility for ensuring that the local community's concerns are raised. Oversight and scrutiny committees and health service bodies could be required to comment on reports.
	The national Commission for Patient and Public Involvement in Health would no longer have responsibility, as proposed in the Bill, for making such representations. It would support patients' councils that function and make representations nationally.
	Patients' councils would share with the commission the task of ensuring that consultations were undertaken by health service bodies and assist where appropriate. That would ensure that a local independent body took on the vital role of ensuring that patients and the public were consulted locally. That would be more likely to result in local action than relying on outposts of a national, staff-only body.
	The national commission would of course be included in the list of bodies to which patients' councils should send their reports. Local authorities have also been included as bodies that must provide patients' councils with information because their work will impact on the health of the local population.
	Amendment No. 111 also permits the making of regulations to allow patients' councils to refer matters to oversight and scrutiny committees and, in specified circumstances, for patients' councils to make referrals to the relevant strategic health authority—the Commission for Patient and Public Involvement in Health or the Secretary of State. That is not intended to usurp the referral power of oversight and scrutiny committees but to allow patients' councils to make referrals where OSCs do not carry out their scrutiny functions or where referrals would be more appropriately directed at strategic health authorities.
	Currently, OSCs have the power to scrutinise but they do not have the duty, unlike CHCs—which have both the duty and the power. Patients' councils would appoint members to sit on overview and scrutiny committees and strategic health authorities. That would ensure coherent representation of patient forum members' interests at a strategic level. Patients' council members would also be able to bring their overview of the work of patients forums to a wider forum.
	The role envisaged for the commission of pioneering new ways of working with local communities and hard-to-reach groups is welcome and would not be compromised by the amendment.
	There remains a strong case for a local, lay-led organisation that could pull together all the various fragmented functions of the system; provide and arrange complaint support; represent the local community; and provide a visible, accessible and approachable point of contact to the local community.
	In summary, patients' councils would offer integration and simplification; a one-stop shop, less bureaucracy; local credibility and accountability; a powerful independent voice for local people; an overview of health issues and services; flexibility; support and back-up for local authorities; and a genuine local watchdog. All that would be compatible with the Government's overall plans—as they accepted in the 2001 Act. It would be a new way of working, not the recreation of community health councils. Patients' councils would embrace the Government's stated vision of a new approach to patient and public involvement while building on the most valued aspects of CHCs.
	I shall not catalogue all the bodies that support patients' councils but they are legion. They include the Patients Association, Age Concern, Action for Victims of Medical Accidents, Help the Aged, Mencap, doctor-patient partnerships, the Royal College of Nursing, the Local Government Association and the Democratic Health Network.
	I want to deal with one set of criticisms that appeared in the Guardian today because I know that the Minister, in his entirely dispassionate way, will wish to refer to it. It was interesting that the letter in the Guardian was received directly by noble Lords today. The chairman of the Long-term Medical Conditions Alliance states in her letter:
	"It is time for the arguing to stop so that action can begin".
	If anyone is guilty of having made sure that the arguing continues and that action cannot begin, it is the Government. The Government are the ones who unscrambled the proposals that were just about there before the last general election. They have wholly failed to come up with a scheme which the majority of people at local level can get behind.
	Of course, there are a number of national charities which are frustrated by this situation. I am a trustee of two of them. But that does not mean that opting for some second-rate, inadequate system of public and patient involvement is the way forward. What we need is a proper scheme that will fill the chasm that I mentioned earlier and make sure that we have the proper involvement and that the new bodies do fulfil a proper duty and are able to carry on the job as worthy successors to the community health councils. I beg to move.

Lord Rea: The noble Lord, Lord Clement-Jones, has described very clearly the functions of the patients' councils proposed in the amendment. I put my name to it because I feel that the matter merits particular consideration by my noble friend. It is not that I feel that he does not give full consideration to every amendment; but, as he knows well, the amendment had considerable support in another place from government Members as well as opposition Members. My purpose is to give it support from this side of the Chamber.
	Throughout our deliberations today, I have had a strong sense of déjà vu. However, matters have moved on since this time last year. The Bill as it stands is certainly an improvement on last year's version in terms of representing patients' interests. Nevertheless, the underlying disquiet about the abolition of the CHCs remains. That is not because CHCs are averse to reform or to change—quite the contrary. But by proposing simply to scrap them and start afresh, the Government have lost a wide tranche of support right across the political spectrum. I am afraid that that includes some of their most loyal supporters.
	The uncertainty about the future of CHCs has already led to a haemorrhage of some of their most able staff and members. However, many of those who remain want to see an effective system of representation and independent scrutiny of the NHS up and running, whatever the name of the organisation, as soon as possible. They accept that many of the Government's proposals are attractive, but the system proposed in the Bill is complex. Patients and the public in general will need the equivalent of an A-Z guide to find their way through it.
	The CHCs provide an entry point which people have learnt to use. Even if 97 per cent of people apparently did not know about their CHCs—and I find that difficult to believe—their social worker, if they had one, their local citizens advice bureau, and certainly their legal advisers or general practitioners, did know how to get in touch with the local CHC. The CHCs have provided a single entry point which people have learnt to use—the term "one-stop shop" should now perhaps be put on one side; it has become a cliché. It is useful for people to be able to go to one place—not only patients but, importantly, other people who are concerned about the working of the National Health Service in their area. These points were raised by my noble friend Lord Harris. The concerns of the population, as well as those of patients, must be looked into properly.
	The proposal for patients' councils brings back such a single-entry facility. But more than that, as the noble Lord, Lord Clement-Jones, pointed out, the councils would act as independent, locally based co-ordinating bodies which would oil the wheels of the system of patients' forums, independent advocacy services and scrutiny which will come into being with the passage of the Bill.
	The amendment received a great deal of support when David Hinchliffe's Bill was debated in another place. Its principles have wide support from national organisations. I have counted at least 24 which have voiced concern about the abolition of the CHCs and the inadequacies and complexity of the replacement structures. The noble Lord has mentioned a few. I mention the BMA, the GMC, the Royal College of Midwives, the Royal College of Obstetricians and Gynaecologists, the National Association of Citizens Advice Bureaux and the Consumers' Association.
	I have also been reliably informed that, only yesterday, a meeting of the Transition Advisory Board (TAB), set up by the Department of Health to smooth the changeover from CHCs to the new system, reached the conclusion that a co-ordinating body very similar to the patients' councils proposed in the amendment should come into being in each local area. CHC representation in TAB is only one-third of its membership; and I am told that it did not advocate patients' councils as such. The other two-thirds include government representatives, local government representatives and the voluntary sector.
	For all the reasons put forward by the noble Lord and those that I have mentioned, I hope that my noble friend will give serious consideration to the amendment and, if necessary, come back on Report with another one which embodies its principles but which may differ in detail to suit the Government's legislative rules.

Lord Weatherill: My interest in the amendment, to which I have added my name, stems from my experience as Member of Parliament for Croydon North East for many years and the high esteem in which the Croydon CHC was held, not only by volunteer groups in my borough but also by individuals and by Croydon council. Indeed, when the abolition of the CHCs was first mooted, the council passed a resolution which was supported by all the political parties—which rarely happens in Croydon.
	Perhaps I may place on record what the resolution said:
	"This Council is proud of the way that Croydon CHC provides a strong and independent voice for the people of Croydon on NHS matters and of the way it carries out its functions as the local watchdog . . . This Council judges that the involvement of an independent watchdog role is essential in helping the Council undertake its proposed new responsibility for scrutiny of the NHS and in adding cohesion to, and commanding public confidence in, other initiatives in the NHS Plan".
	Against that background, I am sure that many in Croydon and many others elsewhere—judging from my post-bag—will share my disappointment that the CHCs are to be abolished. That is why I have added my name to the amendment. It is a compromise. As a Whip for many years in the other place, as Chairman of Ways and Means, and as Speaker, I have had considerable experience of the art of compromise. Patients' councils would provide a means of progressing the most important role of the CHCs and would work perfectly well within the context of the Government's own framework for patient and public involvement.
	Unless we seize this opportunity to achieve consensus on this issue, it is hard to see how or why the public should have confidence in the Government's proposals. I therefore hope that the Government will accept this compromise solution to a matter that is causing concern to so many in the health service in my former constituency and elsewhere, and among many other organisations across the nation. I repeat that this proposal has strong support in the other place, and I hope that this amendment will find favour with Her Majesty's Government and with the Minister at the Dispatch Box this evening.

Baroness Pitkeathley: Many of us who have worked for a long time with patients and user organisations are aware of the frustration expressed in the letter from the Long Term Medical Conditions Alliance quoted by the noble Lord, Lord Clement-Jones, and of the anxieties that the alliance expressed about the promotion of bureaucracy at the expense of the voice of individual users of the National Health Service. We are also aware of the excitement and anticipation felt by many groups about the possibilities offered by the new structures, and of their wish to get on with making them work for the benefit of patients, carers and the general public. It is certainly true that we do not yet know how these structures will work, but I believe that there are adequate safeguards as to accountability and review built into the process.
	Prolonging the debate and making new proposals is not helpful at this stage. The Government have shown great commitment to public and patient involvement, and the Minister has also shown his personal commitment to that, time and again. It is now time to get on with it, and to take advantage of the great good will that exists in the field towards the proposals. I oppose the amendment.

Baroness Carnegy of Lour: It seems to me that we are at last having a realistic discussion on the subject of patient involvement, because patients are being treated as what they are, which is customers of the National Health Service. When the noble Baroness, Lady Pitkeathley, contributed before—and my noble friend on the Front Bench commented on this—she let the cat out of the bag by saying that the Government see members of the public as, in a sense, members of the National Health Service. She implied that the National Health Service was a big tent that included the patients. It is not like that. The National Health Service is a service provided for the public. The public are the customers, and they must be able—at some point in this huge, byzantine structure that is being set up—to have an independent view.
	When my noble friend Lady Hanham was describing, from the point of view of the board, the problem of having the chairman of a forum as a member of the board, I wondered what would happen if a patient happened to disagree in a way that could not be reconciled with the view of the board. What would happen to the wretched chairman? By creating this big tent, the Government have created big problems for themselves. The noble Lord, Lord Clement-Jones, has suggested a mechanism by which there could be straightforward representation of public and patient interests from outside the National Health Service, which is, after all, their service, provided for them and paid for by them. That proposal does, indeed, clarify the issue.
	As I listen to this discussion, I see the Government getting themselves into the most amazing muddle, and, in the long run, their proposals will not work. They cannot work because there is a conflict of interest in the system. The public must be able to say, "We think you are wrong, and we want something different". They must be able to do that through a body that is independent of the service. To that extent, the noble Lord, Lord Clement-Jones, is making a very important suggestion.

Baroness Masham of Ilton: In the last few months there has been a mushrooming of health organisations, both voluntary and statutory. The Minister has launched many of them, and nobody could do it better than he could. I recently attended a reception for the National Patient Safety Agency, a much-needed National Health Service body. Last night, the Minister also spoke at the Parkinson's Disease Awareness Week reception. Nobody could be more aware of the importance of these valuable bodies, which do excellent work.
	Many voluntary organisations give much-needed information to people who are devastated when they have been diagnosed with a long-term medical condition. Those people need information and support. With the complexity of the National Health Service and the need to pass on information about patient groups, there needs to be a powerful, independent voice for local people. I have spoken to many people who have stressed that independence is the most important aspect of a people-led, not staff-led, body. There must be a central point, with easy, friendly access, to co-ordinate and direct the public to the many different bodies. That is why I support the need for patients' councils. If these councils are not independent, many members of the public will not come forward for help and advice, as they will feel that they might be victimised or branded as troublemakers.
	During the Easter Recess, I attended a dinner in Harrogate. I talked socially there to a doctor who sang the praises of the Harrogate Community Health Council, and said what a pity it would be if it were disbanded. He also told me that a rumour was circulating the North of England that the Secretary of State for Health had fallen out with a local CHC, and that that was the reason they were being disbanded. I would like to ask the Minister if that is fact or fiction. The Secretary of State should surely be wise enough not to go against the wishes of the public on a matter such as this.
	This is an opportunity to make patients' councils more effective and to allow them to do more than CHCs. People have become frightened of having an operation in case they develop an infection such as MRSA in hospital. If the councils are not independent, and if people do not feel free to speak out, there will continue to be endless cover-ups by some trusts.
	I would like to see the patients' councils help to bring health and social services into a better and closer relationship. Patients are left in hospitals, blocking beds, because of the slowness of social services in providing aids and adaptations to make their houses suitable. Patients' councils could help to stimulate the co-ordination of public health matters. I must declare an interest here, because my husband has to have his INR checked periodically—that is a blood coagulation test—and I use a mattress to prevent pressure sores. I have in my bag a letter from the Northallerton Health Services NHS Trust, which tells me that the district nurses service will continue to be provided by the community nurses based at Bedale, but from 1st April 2002, the mattress—which is currently rented by the Northallerton trust—will be rented by Harrogate, because Masham, where I live, will fall under the Harrogate primary care trust.
	I give the Committee this example to illustrate how the new system is already causing fragmentation. The public will need patients' councils to be flexible, to cross trusts, to be able to network across strategic health authorities on issues of wider geographical concern, and to sort out many of the small issues of confusion before they become expensive big problems of discontent.
	I hope the Minister will be helpful today. So many people support their local healthcare facilities in so many different ways. Patients' councils could encourage them to do more. The National Health Service needs all the help it can get from everybody.

Earl Howe: I am pleased to support the amendments, which the noble Lord, Lord Clement-Jones, has so ably introduced. I do so mindful of the fact that politics is the art of the possible. I echo the remarks of the noble Lord, Lord Weatherill, that the best model for patient and public representation, for everybody's sake, would be a reform and strengthening of community health councils, as I proposed in my earlier amendment. To my regret, that is not going to happen. Putting our disappointments behind us, it is right that we should examine the proposals that are on the table and suggest ways of improving them.
	I shall not repeat all my earlier criticisms of this part of the Bill, but it might be appropriate to focus on a few of its key features. There is a huge gulf between what the Government say they want and what we are being offered in the Bill. The Government say that they want a patient-centred service. How can that be achieved by setting up institution-based representation? As we have said on a number of occasions, a patients forum will monitor only the services of the trust on which it is based. Who will monitor the NHS more generally from the patients' perspective or look at the wider dimensions of health-related issues? The best of the CHCs have achieved that informed overview very well. We shall lose that if patients' councils are not established.
	We are told that there will be mechanisms to ensure that patients forums work together on key issues. Such informal arrangements are no substitute for having an overarching, lay-led organisation that the public can clearly identify and hear speaking up for them across the NHS. A patients' council would be founded on the combined authority of patients forums, each of which would contribute inside knowledge of its local NHS.
	The next main issue is independence and impartiality. I shall have more to say on that theme on a later amendment, but for now I shall underline one point. If patients' forums are to do their job effectively, the public have to have confidence in them. How will that be possible when the only information fed to the forum will come from the trust? How will the forum be able to check up on what the trust is telling it? How will it know whether it is being given the whole picture on clinical priorities in waiting lists, on real trolley time waits in A&E or on the financial state of the trust? Such reassurance and verification would be achieved through patients' councils, which would also be guarantors of independence, giving the public confidence that their interests were being put forward impartially by its constituent patients forums.
	The noble Lord, Lord Clement-Jones, has listed many more advantages that could come with patients' councils. The one-stop shop could be restored. As the noble Lord, Lord Rea, said, that may be a cliché, but it is still very much to the point. Many services that the patient could relate to could be centred in one place—complaints handling, information, advice, access to local consultation and so on. We could bring together the array of groups and bodies that the Government are currently proposing for lay reference panels, for local providers of ICAS services, for local networks of the Commission for Patient and Public Involvement in Health. A patients' council would embrace the whole lot and in so doing would vastly improve local lines of accountability, which are singularly deficient in the arrangements as now planned. Patients' councils would also act as community-led health watchdogs, which is perhaps the single most significant net loss arising from the abolition of CHCs.
	Those are the main reasons why I support the amendments. The letter from the chairwoman of the Long-Term Medical Conditions Alliance opposing the amendments has been referred to. I have no doubt that she is an admirable and public spirited person, but, if I may say so, she puts herself at risk of being classified as a stooge of the Government. The envelope in which her letter reached me today was identical—with an identical label—to an envelope containing a helpful letter from the Minister. I should be delighted to be told that I am wrong in concluding that both letters were dispatched centrally by the Department of Health.
	I hope that the Minister will not give us a dusty answer to the amendment. If he attempts to do so, he ought to bear in mind that the concept of patients' councils, as embodied here, is supported not just by Members of this House but by numerous patient and voluntary organisations, as the noble Lord, Lord Clement-Jones, mentioned. I hope that we can collectively convince the Government that these are sensible ideas which, if implemented properly, could be a major plank in the delivery of a patient-centred health service.

Baroness Chalker of Wallasey: I hesitate to intervene in the debate, as I am more associated with medical services overseas than those in the UK. I do so as a result of my experience long ago, as Member of Parliament for Wallasey, when we formed the patients participation association to buttress one element of the then CHCs that did not work terribly well. That concerned the links between general practitioners and the local hospital and social services.
	That organisation did some excellent work in the late 1980s and through the 1990s. It has now dwindled, but it did so only when the CHCs took up the challenge set by the association. The issue is very important, particularly for older people, who have less confidence in what is going on than some of us who are lucky enough to be told by the Minister and to hear of all the changes in a different way.
	The proposal by the noble Lord, Lord Clement-Jones, and others is fundamental for encouraging confidence in the health service. Being sick—even a little sick, as I was some time ago—is not something that one views with any confidence, however good the doctor may be. Being part of the great wheel of the health service terrifies the over 60s and probably people much younger as well.
	Establishing a council for the care and consideration of the needs of the patient would be a very valuable service. I hope that the Minister will give serious consideration to accepting the amendment—or a parallel one if there is something not quite right in some aspect of it or if it is not quite correctly drafted, as I well know that Ministers so often say. I believe that the amendment is very well drafted, but should the Minister believe that it is not perfectly drafted I beg him to come back with something that will give greater confidence in the National Health Service, which sometimes has a few problems at the moment.

Baroness Finlay of Llandaff: I support the amendments. I have listened to the comments that have been made so far and feel that, as a healthcare professional, it is important that I voice my support. The independence of the view of patients is crucial. I cannot over-emphasise how vulnerable patients feel when they are ill. If they feel that they are complaining into an organisation on which they are dependent for their care, they are terrified that there may be some backlash against them.
	Only this week I sat with a patient who asked whether he had grounds for complaint. He was frightened of raising the issue with me. I went through the issues and felt that he might possibly have grounds for complaint, but not for litigation, and explained the situation to him. As he looked at me with tears in his eyes, he said that I had put his mind at rest, for which he was grateful. However, he also said that he had been frightened even to raise the issue.
	I believe that such independence is crucial, and that the House ignores the issue at its own peril and at the peril of the public. Healthcare professionals ignore the need for an independent patient voice at their peril, because that is the safeguard in ensuring that we improve the standards of practice.

Lord Hunt of Kings Heath: Like the noble Lord, Lord Clement-Jones, I regret that it was not possible in the dying stages of the previous Parliament to reach a final settlement on the successor arrangements to community health councils. If we had been able to do so, much of the current uncertainty would not exist. That was unfortunately not to be, but life moves on.
	I have absolutely no quarrel with the motivation behind the amendment or with the noble Lords who have spoken in favour of it. The need for co-ordination at local level between patients forums is inescapable and very important indeed. However, I disagree with the noble Lords on the way in which that co-ordination should operate. The noble Lord, Lord Clement-Jones, described our proposals as "top down", but I very much disagree with that description. We are simply saying that patients forums—which are at the local level where the patient receives services—will be the truly important agency for involving the public.
	My worry about patients' councils as proposed by the noble Lord, Lord Clement-Jones, is that rather than helping a decentralised model to work more effectively, they will create a further statutory tier of patient involvement which will get in the way of a fluid approach to co-operation between patients forums at a local level. I stress that all of the functions described in the amendments are already provided for in the Bill. Moreover, we have reached the current position after being informed by a great many views from a wide range of stakeholders and informed observers. That makes me very confident about the integrity of our proposals. Our system has been recognised by many people as stronger, more independent and better placed to deliver the necessary empowering structure.
	The concept of patients' councils is not new; indeed, it has been a critical developmental stage for our proposed arrangements. In many respects, our debate on patients' councils in the previous Session was the catalyst for moving us on to think through the key issue of how to ensure both an informed and continuing process of review at the organisational level, through patients forums, and how to meet the need to build up a picture of patients' experience across a wider health economy. We are proposing that the latter need be met through the auspices of the commission at the local level.
	When we discussed patients' councils in the previous Parliament, the proposal was that they should be matched to about 100 health authorities. As noble Lords know, however, it is now envisaged that there will be 28 strategic health authorities in England. That is another very big change from the circumstances which applied when we last debated patients' councils.
	As I understand it, the noble Lord, Lord Clement-Jones, is also proposing that patients' councils should match the local authorities which are responsible for establishing overview and scrutiny committees. Surely he will accept, however, that the flow of patients does not necessarily match local authority boundaries. Therefore, even if we established patients councils at the local authority level, we would still have to make other arrangements to ensure that we can capture the patient experience of people outside those local authority boundaries. I believe that our proposals much better meet the need for flexibility and recognise that patient flows go very much wider than current local authority boundaries.
	I think that we can all agree that the overview of the patient experience must result from the combined activity of the elements of the new system which we are proposing. We believe that patient forums and the independent complaints advocacy service providers have to be empowered to perform their functions effectively and in a manner which develops their capacity to grow. We all believe, I think, that forums must work together to share outcomes, to plan joint work and to identify key themes and trends from across their respective boundaries. We believe that the system must be informed by the real life experience of patients and not just of a few patients by proxy. I think that we also agree that the public must know how to access support if they want to complain, how to get their views heard, how they can make a difference, and who is responsible for decisions to put things right. I think that we all agree that we must have consistent standards across the country.
	All of those issues are addressed in the Bill. The fundamental change to our proposals since we debated the previous legislation is our proposal to establish a Commission for Patient and Public Involvement in Health. The commission will have not only core functions at a national level, which we shall debate shortly, but—and this is so important—a range of local functions. Therefore, as we have discussed, the key issue is the relationship between patients forums and the commission at the local level. It is clear that the forums will require effective and skilled staff support, and it is the commission that will provide it. Forums will also require briefing support and assistance with administration and secretariat roles and the management of finances.
	The noble Earl, Lord Howe, dealt with forums' need to have information so that they can make judgments on the effectiveness of the trusts which they will review. The commission will have a very important role to play in that. Moreover, the CHI reports will be a very valuable addition to the resources available to each patients forum. We are also proposing in the Bill the creation of a new Office for Information on Health Care Performance which will also provide much needed valuable information to individual patients forums. Commission staff working at local level will clearly have a very important role to play in supporting the work of patients forums and enabling those forums to make the most of the responsibility being given to them.
	We intend to make regulations requiring patients forums to come together on a regular basis to share their findings. As is argued for the patients' councils amendments, this sharing of information is critical to ensuring that the "patient's journey" is truly understood and captured. We shall also use the regulation-making powers in the patients forums clause—Clause 15(5)—to require forums to work together. Clause 19(2)(d) allows for the commission to provide assistance to patients forums and to facilitate the co-ordination of activities. Clause 19(5) states:
	"The Commission is, so far as practicable, to exercise its functions by reference to the areas of Primary Care Trusts".
	I would argue that the crucial importance of the work of the national commission at local level, with a staff resource that will be available at local level, will give a much more flexible approach to achieving the kind of co-ordination between patients forums that noble Lords desire and it captures the entire patient journey, as so eloquently suggested by the noble Earl, Lord Howe, without setting up another statutory patient organisation at the patients' council level.
	I would be very cautious about detracting from the primacy of the role of the patients forum at that level. Statutory patient councils would do that. Our approach in using the auspices of the national commission at local level will achieve all that noble Lords desire.

Lord Clement-Jones: I thank the Minister for his very interesting reply. He tried to pull out all the stops in his arguments, but it is clear from the speeches of other noble Lords that the arguments are against him. He can be in no doubt about the feeling of the Committee, with the exception of the noble Baroness, Lady Pitkeathley. I wish that I could be excited about the proposals and the new structures. It is far more preferable to reduce our enthusiasm slightly and wait a little longer until we have a set of proposals that we can support.
	I very much appreciate and agree with the arguments of the noble Lord, Lord Rea, as to the importance of the single point of access. I have not used the phrase "one-stop shop"; we must clearly desist from overworking that phrase. That is one of the key arguments, and the noble Lord, Lord Weatherill, made some important points about the trust and confidence that people have in their local CHCs. We must ensure that any scheme of reform has the same degree of public trust.
	The noble Baroness, Lady Carnegy, is not known for supporting my propositions, but she really put her finger on the point. Ministers talk obsessively about the system being one of patient and public involvement, which comes from inside rather than outside the NHS, and so on. The argument advanced by the noble Baroness about there being a conflict of interest tucked in there somewhere is extremely important.
	The vital issue of independence was raised not only by the noble Baroness, Lady Carnegy, but by the noble Earl, Lord Howe and the noble Baronesses, Lady Finlay and Lady Masham. The Minister did not give the lie to that argument. I thought when considering the wider element of confidence in the NHS that the remarks of the noble Baroness, Lady Chalker, were extremely important. It is a matter of fundamental confidence and one that will have great significance for the public, whether they are patients, family, carers, or whatever incarnation they may have. It is important to have that broad view of both primary and acute care. The patients' councils would do that.
	It is gratifying that the Minister accepts the need for co-ordination, but the way in which that takes place is crucial. He talked about a fluid approach, but others might describe it as an incoherent approach. He talked about not being top down. The commission is the creature of the Secretary of State for Health. How more top down than that can one get? I cannot agree with the Minister on that either.
	The Minister is extremely confident about the integrity of his proposals. I am afraid that outside this House, vast numbers of people do not have great confidence in those proposals. It is interesting that the Minister talks about these proposals—patients' councils—being part of the genesis of the new exciting era, as outlined in the Bill as it stands. It is certainly not a building block; it is rather like a stage of a rocket that is dropped off half-way through its ascent to the stars. That is all that it is and it bears no relationship to the Government's current proposals. It is all very well for the Minister to say that patients' councils no longer fit as we now have strategic health authorities, but that is just because the goal posts have been moved. I do not agree with that scheme of devolution, but that is clearly a separate matter.
	The proposal for patients' councils does not assume coterminosity with local authorities. It is a matter of discretion. They could be coterminous where appropriate, but they may not be, and they may need to be wider than the boundaries of local authorities.
	We have had a good debate. I hope that the Minister is considerably more flexible and sympathetic than he appears because we shall be a ferocious dog with this bone throughout the passage of the Bill. I assure him that it is the single most important matter to which we shall return on Report and Third Reading, if necessary. I trust that the Minister will ponder further between now and the next stage. In the meantime, I thank Members of the Committee for their support and contributions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 16 [Entry and inspection of premises]:
	[Amendments Nos. 112 to 114 not moved.]
	Clause 16 agreed to.
	Clause 17 [Annual reports]:
	[Amendment No. 114A not moved.]
	Clause 17 agreed to.

Lord Hunt of Kings Heath: I think that this is a convenient time to break. I suggest that we return to this business not before 8.30. I therefore beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Child Support (Miscellaneous Amendments) Regulations 2002

Baroness Hollis of Heigham: rose to move, That the draft regulations laid before the House on 13th March be approved [23rd Report from the Joint Committee].

Baroness Hollis of Heigham: My Lords, the regulations make a number of amendments to nine of the sets of regulations that govern child support. This package is largely made up of amendments to regulations governing the new child support scheme and to the transitional regulations which relate to the transfer of cases from the current scheme to the new arrangements. The transfer will take place in due course, when we are satisfied that the new arrangements are working well.
	In addition, the package includes a small number of amendments to the current scheme. They are designed to protect the interests of parents who find themselves in certain specific circumstances, as I shall explain. It is important that we provide such protection for those clients who will continue to be subject to the current rules for some time yet.
	Your Lordships will recall the Statement made in another place on 20th March about the introduction of the new and simpler child support scheme. I have nothing to add at this stage in the way of extra information except to assure your Lordships of my intention to keep this House updated on progress towards its implementation. Obviously, if I can answer any queries I shall be happy to do so.
	Many of the amendments in this set of regulations make minor technical corrections. Others simply serve to reflect the intended detail of the new scheme legislation. In the limited time available this evening your Lordships would not be well served by my explaining the intentions of each amendment one by one, and they were not discussed in any detail in the other place. However, with the permission of the House, I shall draw attention to some of the more significant changes, which I am sure your Lordships will agree are benevolent.
	Regulations 3 and 9 relate to departures and variations. These amendments relate to the disregard of vCJD compensation payments. One of the "current scheme" amendments to which I referred a moment ago relates to the departure scheme. Under the current rules it is possible to depart from the standard formula assessment in certain circumstances. One of the circumstances in which a departure direction can be give is where, for example, a party to the maintenance assessment—that is, the non-resident parent—has an asset worth more than £10,000 which is capable of producing income but which is not being used to do so. Regulation 3 amends the current scheme so that certain payments made under the compensation scheme for victims (and families of victims) of variant CJD will not be regarded as assets for the purposes of departure. In other words, they are simply disregarded and therefore not taken into account to affect upwards the liability.
	Regulation 9 therefore includes a corresponding amendment in respect of the variations scheme which will, under the new rules, replace the departure scheme. So the same disregard under the current scheme will be carried forward into the new scheme. I am sure your Lordships will welcome that.
	Those payments are made in recognition of the pain and suffering endured by the victims of this terrible disease—and by their families—and are intended to help reduce any financial hardship they may face. I am sure your Lordships will agree that such payments should be ignored in the calculation of child maintenance in circumstances where they would be disregarded when considering entitlement to income support.
	Regulation 5 reflects the income support enhanced disability premium in exempt income under the current scheme. So a further current scheme amendment under regulation 5 concerns the calculation of the exempt income figure. This represents the income which parents need for their own personal expenses and it also includes allowances for any of their children who are living with them. It is therefore not taken into account when making a maintenance assessment.
	Regulation 5 amends the Child Support (Maintenance Assessment and Special Cases) Regulations which govern the assessment of liability in the current scheme and include the rules for calculating the exempt income of each parent. The exempt income figure is based on income support rates. Last year, as part of the Government's commitment to provide additional help for the most severely disabled, the Government introduced the disability income guarantee, which provides for a new higher rate of premium in the income-related benefits. The amendment provides for an amount equivalent to the enhanced disability premium to be included in a parent's exempt income calculation. It applies where either that child, or its parent, if they were on income support, would satisfy the conditions for payment of the premium. Again, this is another benevolent activity where this income is effectively disregarded.
	I turn to Regulation 4, which relates to information, evidence and disclosure, and better information gathering. We are all agreed that children are entitled to the financial and emotional support of their parents. Whether they live together or apart, both parents are responsible for supporting their children. Unfortunately, not all parents share that view and some do all they can to avoid their responsibilities. Regulation 4 therefore amends the Child Support (Information, Evidence and Disclosure) Regulations. It adds to the categories of persons who are required to provide information or evidence for child support purposes and brings Northern Ireland and Scotland into line with England and Wales. It will mean, among other things, that for both current and new scheme cases the Child Support Agency will be able to seek information from driver and vehicle licensing in Northern Ireland and from the Scottish and Northern Ireland prison services. Again, it is a straightforward adjustment as to from whom we can seek information.
	Regulation 8 relates to transitional provisions, in this instance the extending of appeal time limits. I am sure your Lordships will agree that this is another benevolent change. Regulation 8 of this package makes a number of amendments to the complex rules governing the transfer or conversion of the existing caseload to the new scheme as set out in the Child Support (Transitional Provisions) Regulations.
	One of the more notable changes is an amendment to the time limit for appeals against a conversion decision—that is, the decision setting out someone's liability under the new scheme. Parents will be advised of their new scheme liability in good time before the new rules actually apply to them. It may be six months ahead or even longer. Normally the appeal time clock would start ticking from the time they are notified, even though that may be six or nine months ahead of when the conversion actually takes place. They may then find that by the time they are affected, the clock has run out on the time limit for appeals. That seemed to me to be unfair. They were notified well in advance of when it would come into effect and, particularly if self-employed, they may not realise the extent to which the clock is ticking and how they may have lost their ability to appeal. Therefore I sought and succeeded in extracting from the appeal system an amendment which provides that the deadline for appeals against a conversion decision will be extended from one month after the conversion is given—that is, notified—to one month after conversion actually takes place. In other words, parents will be able to retain the right to appeal from the time they first learn about their conversion decision right up until one month after it takes effect. That is simply because, unlike almost every other scheme, there is a long period of notification and people should not lose their right of appeal simply because they can assume they can appeal once it takes effect rather than once they have been notified.
	Regulation 2—decisions and appeals—makes a number of amendments to the Social Security and Child Support (Decisions and Appeals) Regulations which set out the rules for revising and superseding child support decisions. This is about the information needed when a decision-maker is adjusting the liability. Among other things, the amendment provides for a maintenance calculation to be revised back to the beginning in cases where a person who had been named as the non-resident parent turns out not to be the parent of the child, usually following DNA testing but not invariably so.
	When a person with care applies for a maintenance calculation (maintenance assessment in the current scheme) the CSA will make one unless the non-resident parent denies parentage before the calculation is made. If the non-resident parent does so deny, then the agency can only go ahead with a maintenance calculation in certain prescribed circumstances; for example, where he has adopted the child. If the non-resident parent denies parentage after a calculation has been made, he may undertake CSA DNA testing or apply to the court for a declaration of non-parentage. If the outcome of either is that he is not the child's father, any maintenance calculation will be revised back to the beginning. Again, this is a benevolent change.
	Those are the main changes. Most of the rest are tiny tidying up drafting changes. But I am sure your Lordships will agree that the disregard of disability payments, the disregard of vCJD payments, the extended period for appealing and the right for a person to have the maintenance calculation revised if he is found not to be the child's father are benevolent changes. As a result, I hope that the House will give the regulations full support.
	Moved, That the draft regulations laid before the House on 13th March be approved [23rd Report from the Joint Committee].—(Baroness Hollis of Heigham.)

Baroness Noakes: My Lords, I thank the Minister for her explanation of the regulations. As usual, it was a model of lucidity, making everything seem extremely simple. However, those of us new to this area do not find these matters simple. We have nine substantive regulations amending nine sets of orders under the power of two Acts, one of which is amended by the other. They deal with the old scheme of child support and the new scheme of child support and the transitional provisions. If that is not complicated, I do not know what is. However, I am learning that complexity is a hallmark of work and pensions matters. I am hoping to acquire a fraction of the Minister's expertise one day.
	Perhaps I may refer to the computer system. The Minister referred to the Statement last month by the Secretary of State for Work and Pensions in another place. We learned that there had been further delays in implementing the systems, which were due to come onstream first in October 2001, then this month. They have now been delayed sine die. When does the Minister expect the systems to become operational? That is an important issue for those waiting for the new child support system.
	In addition to an estimate of timescale—I find it curious that no estimate has yet been given of when the system is expected to be fully operational—will the Minister say something about the reason for the delay? My noble friend Lord Higgins at Second Reading of the Child Support, Pensions and Social Security Act 2000 two years ago, warned of the problems of running two different systems and an inevitably complex transitional system. Is the problem in implementing the new system its complexity? If complexity is not the root cause, will the Minister explain what the problems are?
	I turn to the regulations. I welcome the amendments in the regulations which implement disregards for payments under the variant CJD compensation scheme. They are highly desirable amendments. We congratulate the Government for proposing them.
	I have two detailed questions. First, in Regulation 2 there is a provision—which the Minister explained a moment ago—for maintenance calculations to be revised from the beginning where a man turns out not to be the parent of a child. That seems sensible. Does that provision apply only to the new scheme of child support and not to the previous scheme? If so, will the Minister say why?
	My second question relates to Regulation 5, which allows the enhanced disability premium in income support to be included in a parent's exempt income, to which the Minister referred. That is clearly to be welcomed, but does it apply only to the former child support scheme and not the new one? Again, if so, will the Minister say why? With those small technical queries we welcome the regulations.

Earl Russell: My Lords, Frederick the Great would ask his new recruits three questions. First, "How long have you been in the service?"; secondly, "How old are you?"; thirdly, "Are you content with your officers and your pay?". One of his recruits, being Silesian, spoke nothing but Polish, so he was taught the answers to the questions by heart.
	But Frederick the Great chose to ask the questions in the wrong order. "How old are you?" "Eighteen months." "How long have you been in the service?" "Eighteen years." "One of us is mad!" "Both, your Majesty."
	Approaching the regulations, I feel rather like that. I do not know whether I have discovered a hornets' nest or a wasps' nest. I do not know whether I am being extremely stupid or whether a cock-up has happened at the administrative end.
	I have no objection to the contents of the regulations. They are benevolent in intention and many will be benevolent in effect. That is not the problem. My problem is what is being amended. We know that on 20th March the right honourable Mr Alistair Darling deferred the introduction of the new scheme because of a computer problem. Computer problems are far too common with government, but I am the last person in the world with any authority for saying how to deal with them, being completely computer-illiterate. I regret that I have no helpful suggestions.
	As the noble Baroness, Lady Noakes, pointed out, it is clear that the right honourable Mr Darling is not at all certain when he intends to introduce the new scheme. He is clearly not satisfied with the service he is receiving from EDS. On 20th March, he said,
	"the contract with EDS specified that the Department will not pay for the computer system until it meets the standard required, and that remains the position".—[Official Report, Commons, 20/3/02; col. 316.]
	One may say that the former Department of Social Security and the Department for Work and Pensions' faith in EDS has continued in the face of a remarkable amount of evidence to the contrary.
	Be that as it may, we must consider what is being amended. The Explanatory Memorandum, for which I thank the Minister warmly, makes—as I thought—a clear distinction between the existing scheme and the new scheme introduced by the Social Security Act 2000, which, as I understood it, was to come into force next April, but now is not to. According to paragraph 3 of the Explanatory Memorandum:
	"The draft Child Support (Miscellaneous Amendments) Regulations 2002 make amendments to a number of the sets of regulations which govern child support. Most of the provisions amend regulations governing the new child support scheme. Some amend the transitional provisions which provide for the conversion of cases from the existing to the new scheme. A small number amend existing scheme regulations".
	I should be grateful if the Minister would distinguish the small number which amend existing regulations—with which we have no problem—from those which amend transitional provisions and tell us how they are affected by the decision to postpone the transition, and those which amend rules not yet in force. I have trouble in interpreting the Explanatory Memorandum in that it is not dated. I do not know whether it was written before or after 20th March. That appears to make a considerable difference as to how it should be read.

Baroness Hollis of Heigham: My Lords, I understand the push of the noble Earl's original question about which provisions apply to the current scheme, the transitional scheme and so on, but why does he believe that the events of 20th March make any difference to his question?

Earl Russell: My Lords, I want to know which regulations and laws the provisions are intended to change; whether the intention was to change what is now not coming into effect or whether it was to change what is in effect and therefore can be changed.
	I understand that one may make a change with reference to the future only. However, Regulation 1(3) specifies that,
	"These Regulations shall come into force as follows—
	(a) subject to sub-paragraph(b), these Regulations shall come into force on the day after the day that they are made". Sub-paragraph (b) excepts Regulations 2 and 4(a), both of which the Minister helpfully explained. If the regulations are to come into force tomorrow, and the laws which they are to amend are not to come into effect until an undetermined time in the future, I do not see what is being attempted. One can provide that a law will be amended when introduced. I understand that; it is daily practice. One can amend a law already in force. I do not understand how one can amend with effect from today a law which will not come into force until tomorrow. That is my problem. That is where I do not know whether I am being extremely stupid or whether there has been an administrative cock-up. I do not know whether I have discovered a hornets' nest or a wasps' nest.
	While consideration is being given to that question, there are one or two provisions in the regulations to which I wish to draw attention. I hope that the Minister now understands why the question of the dating before or after 20th March is material in this respect. I am interested in the proposal to allow a correction where it turns out that a person is not the father of the child. That is very clearly equitable, not to say just. What really strikes me is the legislative universe into which we are moving whereby we have to invoke the full panoply of legislation in order to make it possible to cease charging a man for a child of whom he turns out not to be the father. This is a piling of Pelion upon Ossa in terms of regulation, which leads to a process that goes on and on.
	When the Minister was doing this before, I remember describing the process as "piddling", as the garage man said to my father-in-law when he tried to top up his radiator when it was almost full. I believe that that term is in fact apt. As always, the wording of the regulations leaves a great deal to be desired. I am grateful to the Minister for her explanation of some of the regulations. However, although the Minister explained Regulation 4(a) perfectly well, she did so in English. I am not sure that I can say the same for what is written in the regulations. For example, it reads:
	"(a) after sub-paragraph (a), there shall be inserted—
	'(aa) where regulation 8(1) of the Maintenance Calculations and Special Cases Regulations applies (persons treated as non-resident parents), a parent of or a person who provides day to day care for the child in respect of whom a maintenance calculation has been applied for or has been treated as applied for or is or has been in force, with respect to the matter listed in sub-paragraph (1) of regulation 3(1);' and".
	After reading that passage five times, it seemed to me that it probably meant what the Minister said it meant. I should like to thank her very much for the translation, but it should not have been necessary.
	I wonder whether the Minister is now in a position to tell us what these regulations are amending; for example, whether it is existing law, future law, or transitional provisions. Alternatively, if it is a mixture, can the noble Baroness tell us what proportions apply?

Baroness Hollis of Heigham: My Lords, I thank both the noble Baroness and the noble Earl for their questions. I begin with the substantive point made by both speakers; namely, when the computer system will become operational. Perhaps I may remind the House that, at the end of April of this year, we proposed to take on the new cases that would filter through the system. Subsequently, around a year or so later when we were confident that the system was secure, we intended to take on the existing caseload. We are not confident that the proposed new system is secure for new cases, primarily because, in our judgment, it has not yet been sufficiently tested so that the risk of any major problem arising is acceptably low. It is possible that the system will not face significant problems, but it has not received the sustained testing required.
	Crucially, as your Lordships will recall, one of the changes under the new system that has been broadly welcomed is that the parent with care will retain up to £10 of maintenance paid. This means an interface of the new computer with the IS/JSA systems. That interface does not currently exist. The IS/JSA computer is 20 to 25 years old. For the sake of all the parents on benefit—a substantial proportion of the caseload—we must be very sure that that interface is secure if such payments are to be made. We need to know that this type of detailed testing will survive when we throw a heavy caseload at the system. Therefore, the Secretary of State made it very clear that we shall go ahead with taking on the new cases when we are confident that the testing has shown that the risk is as low as we can make it and that the system will work. I am not in a position to tell the noble Baroness how long that process will take. Obviously, I hope that it will be carried out as quickly as possible. We must be sure that the system is robust to handle the proposed workload.
	We consulted the voluntary organisations and discussed the matter with those concerned at the same time that the Secretary of State made his announcement to Parliament. They entirely support what we are seeking to achieve. They would prefer a system with the risks minimalised to one where we deliver to our original target time but where the risk might be unacceptably high. Indeed, in that case we might have particular problems with the interface of the IS/JSA system. Having said that, I should point out that that does not automatically mean that the existing caseload will come on stream a year afterwards. We may, or may not, be able to reduce that time. We must ensure that the system is robust. There is no automatic read across in this respect.
	I am trying to be frank with the House. I must emphasise the very difficult decision with which the Secretary of State was faced—

Earl Russell: My Lords, perhaps I may be excused for making what may appear to be an irrelevant intervention at this point. I have just realised that I forgot to make an apology to the Minister for not giving her advance notice of the points that I intended to raise this evening. I should point out that I only worked out my queries in the 20 minutes before the matter came before the House. Nevertheless, I very much owe the noble Baroness that apology, which I beg her to accept; it is sincere.

Baroness Hollis of Heigham: My Lords, I am most grateful. As the noble Earl, Lord Russell, commented, I recognise that these regulations are extremely technical in their phraseology. He is quite right. When you have regulations to amend regulations under a Bill, it is very hard to decipher what is going on once you have delved back into the past. I wonder whether the House is now content with the explanation that I tried to offer on the substantive issue raised; namely, the timing issue. One is trying all the time to make a judgment on meeting a proposed timetable that increasingly looks risky. Given the number of cases with which we shall deal on a month-by-month and day-by-day basis, I hope that noble Lords will understand that we cannot afford an unacceptably high risk to those clients. I give way to the noble Baroness.

Baroness Noakes: My Lords, I am much obliged to the Minister for giving way. We still have no idea of timing. Before going ahead with the system live, I assume that the department has had some detailed discussions with EDS over the nature of its concerns and that there is an agreed programme of testing, remedial work, and so on. Indeed, that is normal in such cases. However, can the noble Baroness tell us what timescale the department is working to with EDS? I fully accept that further problems may emerge; for example, the early results of testing may highlight more problems; and, indeed, there may be further issues to be unravelled. Nevertheless, I find it odd that there is no timetable to be shared with the House.

Baroness Hollis of Heigham: No, my Lords; I cannot give the noble Baroness the information that she requires. We are working very closely with EDS. I am sure that the noble Baroness will recognise that the contract we have with EDS means that no money is paid until the system is handed over in working order. Therefore, EDS has every incentive to work with us, not only closely—which is the case—but also as speedily as possible. I have no complaints about the resources that EDS is throwing at the system. It could be argued that the system has been sufficiently tested to assure us that the risk is as low as we can make it. However, at the end of the day, we are asking for quite complicated interfaces to be developed. As I said, we are not yet confident that that is the case.
	I wish that I could be more helpful to the noble Baroness, but I genuinely have no further information to give her. We are not talking about commercially-sensitive issues. I am simply saying that neither I nor the Secretary of State know at what point we shall be sufficiently confident that the risk is minimal, and when we shall be ready to come to Parliament and give a date for what we call "A day"—namely, the take on of new cases.
	The noble Baroness asked about the parentage revision and to what it applied. The revision applies only to the new scheme because the current scheme uses the cancellation provision to dispose of the maintenance assessment where a non-resident parent (an NRP) turns out not to be a parent. It is a new way under the new scheme of doing what we currently have a power to do, but, given the new structure of the scheme, this does not carry over. The noble Baroness also asked about the enhanced disability premium. She will understand that, in future, where the NRP—I use a gendered word, as this could apply also to the noble Baroness, though most NRPs will be male—has an income of £200 a week, he will be paying a percentage slice of his income. Therefore, particular ingredients of this are not affected. Obviously, if the person is on benefit income, or in receipt of an income of less than £100 a week, he will be paying a flat rate £5—every penny of which, incidentally, will be going to the parent with care, not to the Treasury. Therefore, it is, indeed, child support.
	Finally, the noble Earl, Lord Russell, asked two questions. The first concerned the regulations. He asked whether, as he put it, this was a major hornets' nest or an issue of drafting; no, it is not. Regulations 6, 7 and 8 come into force when the regulations are made, but they amend regulations which will come into force only when the new child support scheme begins. They are amendments with immediate effect to regulations which will come into effect only with the new scheme. The noble Earl is right to pick us up on that, but "it is OK", if I can put it in those words.
	The noble Earl asked what Regulation 4(a) means. It concerns shared care. If both parents share equal care of a child, regulations provide that the non-resident parent is the person who is not in receipt of child benefit.

Earl Russell: My Lords, I thank the noble Baroness for giving way. I may be able to save her some trouble. I said that I did not understand that in the original draft but that I did understand perfectly the Minister's previous explanation.

Baroness Hollis of Heigham: My Lords, I would certainly say something different the next time around, which would only add to confusion. I shall seek to conclude here and hope that I have addressed your Lordships' queries.

Baroness Noakes: My Lords, I may have misunderstood the Minister's reply. The question I asked was in relation to Regulation 5, the enhanced disability premium and the disregard or the inclusion in exempt income. I asked whether that applied only to the old scheme and not the new scheme, and if so, why?

Baroness Hollis of Heigham: My Lords, perhaps I may explain to the noble Baroness that questions such as sources of income do not come into play under the new scheme because it is a simple slice of the formula. Under the existing scheme we have protected income, exempt income and so forth. As a result it does not matter about the income flows. I was trying, which possibly added to the confusion, to make a difference between levels of income and when those percentage slices kicked in. However, I believe I have addressed the question asked by the noble Baroness.

On Question, Motion agreed to.

Mental Health Act 1983 (Remedial) Order 2001

Lord Filkin: rose to move, That the order laid before the House on 19th November 2001 be approved [6th Report from the Human Rights Committee].

Lord Filkin: My Lords, I beg to move that the Mental Health Act 1983 (Remedial) Order 2001 be approved. The purpose of today's debate is to seek approval of the remedial order amending the Mental Health Act 1983 that was made on 18th November 2001 and laid before Parliament on the day following. The purpose is, in essence, to ensure that mental health legislation is consistent with the Human Rights Act 1998 and the European Convention on Human Rights.
	The case that led to the making of this order concerned a patient who was detained for treatment under the Mental Health Act 1983 and who had applied to the Mental Health Review Tribunal for discharge from detention under the Act. It was argued before the courts that under the Act the tribunal was not required to discharge a patient unless satisfied that at least one of the criteria set out in the relevant section did not exist. That double negative formulation had the effect of placing the burden of proof on the patient, and it was argued that that was incompatible with Articles 5(1) and 5(4) of the European Convention on Human Rights.
	The Court of Appeal accepted those arguments and declared on 4th April last year that these sections were incompatible with Articles 5(1) and 5(4) of the ECHR. Section 10 of the Human Rights Act sets out procedures for remedial action to be taken to remove such incompatibilities.
	Section 4(6) and 6(2) of the Human Rights Act preserve the sovereignty of Parliament. It therefore requires action by Government to remedy an incompatibility. This is the first declaration of incompatibility requiring remedial action under the Human Rights Act. A number of options exist potentially for addressing such an incompatibility. First, even though the Court of Appeal refused leave to appeal, it was a possibility to petition the House of Lords. It was the Government's view that there was no discernible error of law in the Court of Appeal's judgment and in addition, the judgment was not out of line with the thrust of government policy intentions for new mental health legislation as set out in the White Paper Reforming the Mental Health Act.
	Next, consideration was given to introducing legislation to amend the relevant sections of the Mental Health Act, but that approach was rejected on the grounds that the amendments needed fell outside the scope of any planned Bills. It would not be appropriate to introduce amending legislation on that matter before Parliament had an opportunity to consider a new Mental Health Bill in its entirety.
	The Government are committed to introducing a Bill to replace the Mental Health Act as soon as time is available, but to wait for that would lead to an unacceptable delay in remedying the incompatibility. The Secretary of State therefore decided that in the circumstances, making a remedial order would be the best approach.
	Under provisions in the Human Rights Act there are two procedures for introducing a remedial order: the "ordinary procedure" and the "urgent procedure". As it would imply, in the case of an urgent procedure an order may be made if it appears that, because of the urgency of the matter, it is necessary to make an order without the draft having first been approved by Parliament.
	At the outset the Secretary of State intended to use the ordinary procedure to give Parliament the opportunity to review and debate the order before it came into effect. However, the Joint Committee on Human Rights considered that the remedying of an incompatibility which could affect the liberty of individuals should be regarded as an urgent matter and that the change in the law proposed was relatively simple and uncontroversial. In the light of that view the Secretary of State decided to make an order under the urgent procedure.
	The committee also raised a number of other questions. It was in general satisfied with the responses, except that it considered that it would have been appropriate to include a statutory compensation scheme in the remedial order. The Secretary of State, on the other hand, proposed that any claims for compensation should be handled on an ex gratia basis. While expressing its disappointment that its suggestion was not accepted, the committee did not insist on it and agreed that the proposal to deal with any claims for compensation on an ex gratia basis will, if applied fairly and justly, forestall any further legal challenge.
	I shall speak briefly on the context for this change. The House will be aware that the Government are committed to reforming the Mental Health Act 1983 because of the significant developments in the way in which patients with mental health problems are treated have come about. New drug treatments and different patterns of care make it generally necessary and important to do so, let alone the Human Rights Act and the European Convention on Human Rights, which also make necessary the need for reform. However, as the House is aware, there is no legislative slot at present for that.
	In addition, new legislation on its own will not be sufficient. There need to be effective community-based services that are acceptable to those who need to use them, improving mental health services. Without detaining the House, the Government published in the National Service Framework for Mental Health, the broad thrust of how they intend to move forward making significant improvements in the standard of mental health services. The NHS Plan builds on the work which has been done previously.
	The Government have committed themselves to a radical reform of mental health service provision and of the mental health legislation that underpins it. But to achieve such an ambitious programme of change requires time. That is why we are taking action through the remedial order to ensure that the existing legislation is compatible with the provisions of the ECHR. I am satisfied that the order, as it stands, ensures that the relevant provisions of the Mental Health Act are now compatible with the European Convention on Human Rights and therefore afford better protection of patients' rights. I commend the Order to the House.
	Moved, that the order laid before the House on 19th November 2001 be approved [6th Report from the Human Rights Committee].—(Lord Filkin.)

Baroness Noakes: My Lords, I thank the Minister for his clear explanation of the order before us tonight. Perhaps I may say at the outset that we on these Benches support the order. It is clearly necessary for the Government to remedy the incompatibility between the 1983 Mental Health Act and the European Convention on Human Rights.
	I have two sets of questions for the Minister. The first concerns the clear preference of the Joint Committee on Human Rights for a compensation scheme to have been contained in the order, to which the Minister referred in his introduction, and to the decision of the Department of Health to operate an ex gratia scheme. He also referred to the words of the Joint Committee, which were that it hoped that
	"the proposed ex gratia scheme will be applied justly and appropriately"
	in part to forestall the possibility of further legal challenge.
	Perhaps I may ask the Minister to state the status of the ex gratia scheme. Has a scheme actually been drafted? When will the scheme be made public? What arrangements are there for such a scheme to be drawn to the attention of those who might be eligible?
	My second question concerns the Government's proposals for other legislative provisions which contain similar burden of proof issues. Several respondents to the Joint Committee drew attention to Section 72(4) of the Mental Health Act 1983 which deals with applications to the Mental Health Review Tribunal in the context of guardianship. Liberty drew attention to a non-health area, which is the Discretionary Lifer Panels of the Parole Board under the Crime (Sentences) Act 1997. Both have burden of proof provisions which will be open to the criticism which led to the incompatibility declaration in the case which resulted in this order. What plans do the Government have to remedy these provisions so as to avoid further challenges under human rights legislation?

Lord Clement-Jones: My Lords, we on these Benches also welcome the order. I think that Opposition spokesmen probably should benefit from the Human Rights Act in terms of cruel and unusual treatment, being deprived of refreshment post-Committee stage. However, I am delighted that in a sense this is a rather historic occasion as this is the first order of its kind under the Human Rights Act, which we on these Benches strongly supported.
	The court having made its decision in March last year in Regina(H) v. Mental Health Review Tribunal, North and East London Region, it was right to remove the requirement that the burden of proof should be placed upon the patient. We very much support that, and I am very pleased that the Joint Committee on Human Rights was so positive about the general tenor of the order.
	However, a number of matters flow from what the Minister has said. I should like to put on record my thanks to the noble Lord, Lord Hunt of Kings Heath, for the briefing note that was sent around before the debate. It was a very clear and useful way to explain what was in the order to those of us who have not been covering that closely the proposal for an order. It is quite interesting that the actual draft order was tabled last July. Whether it was the ordinary or the urgent procedure it seems rather a slow process. The court decided on the case in March. Yet, here we are a year later faced with an order of this kind. In the meantime, we do not know but it may well be that patients have been prejudiced by the failure to amend the order. Some response is required about future earnest as to whether or not in the future this can be achieved rather more quickly, as a year seems to be rather excessive for what was then regarded as a fairly urgent matter.
	There are other matters that the Minister mentioned in his introduction. I welcomed the Minister's statement of the intention to bring forward a new mental health Bill at the earliest possible opportunity. From these Benches I would certainly like to place on record that that mental health Bill is long overdue. The review took place some years ago; the debate took place some years ago. It has been extremely unfortunate from the mental patient's point of view that in a sense that debate has been allowed to die down. We will have to freshen the public debate about issues such as capacity and powers of detention and so on and, in a sense, re-enter that whole public debate which was started so effectively by the review that took place a year after the Government came to power.
	Finally, the Joint Committee on Human Rights was clearly disappointed by the Government's views and decision only to institute an ex gratia system. I found the note circulated by the department slightly misleading in that respect. The note states:
	"They agreed, however, that the proposal to deal with any claims of compensation on an ex gratia basis will, if applied fairly and justly, forestall any further legal challenge".
	Looking at the sixth report of the Joint Committee on Human Rights, it seemed to me that they were rather more equivocal than that. Paragraph 28 states that,
	"we continue to believe that the failure to include in the remedial order a provision allowing a person detained in breach of Article 5 by virtue of the previously incompatible legislation to claim compensation as of right would automatically give rise to a violation of Article 5(5) if it proved that that person had been affected by the incompatibility".
	I do not know whether those two statements are themselves compatible. But it seems to me that this is a rather blither interpretation of that than it should be. I should like to ask the Minister whether serious consideration has been given to whether there is a risk of challenge if it is purely an ex gratia scheme; and where the Minister places the likelihood of a challenge being successful. Those are my comments.

Lord Filkin: My Lords, I thank both noble Lords for the helpful way in which they have responded to this order. It is a significant historic occasion. It is the first time that we have seen remedial legislation under the Human Rights Act. That in part explains the Government's caution in the way that they proceeded initially under the non-urgent procedure.
	I turn first to the question of the noble Baroness, Lady Noakes, as to why there is not a statutory scheme. In short, there are two reasons: first, there was some legal advice that a statutory scheme could create further legal problems in putting some cases outside, some subsequent tribunal decisions having made them null and void.
	The second reason—which is more substantial—is that the ex gratia scheme will give a significantly greater scope for beneficial flexibility on behalf of any potential claimants. Perhaps I may give a couple of examples. A statutory scheme would require a patient to demonstrate that, were it not for the incompatibility, he would have been discharged, which is the proper test legally for damages, whereas an ex gratia scheme, which is based on this notion, is flexible enough to allow the Government to meet claims that do not strictly satisfy the test where it is just to do so.
	Further, a statutory scheme would have time limits for claims to which it must adhere, whereas an ex gratia scheme allows more flexibility. Where the patient is not able to demonstrate conclusively that the incompatibility led to his continued detention, the Government could under an ex gratia scheme consider what case he had been able to make out and to take a view on compensation accordingly. We believe that there are likely to be extremely few cases. But in practice we hope that it will give a little more flexibility to make judgments which in the circumstances are benign rather than harsh.
	The noble Baroness also asked about the status of the scheme. Essentially the levels of compensation of the scheme in such cases would be set according to the Strasbourg conventions. So there would be principles that would underpin it. The Government do not have a fully worked out scheme at this stage. But we shall be looking on a case by case basis and seeking to apply the Strasbourg principles to any cases that come forward.
	The noble Baroness also raised a question about how this will be brought to the attention of any interested bodies. I strongly agree that that is a relevant issue. As soon as the incompatibility was apparent in terms of the Court of Appeal's judgment, the Government wrote to a range of bodies—the most significant of which for these purposes was the Law Society—bringing the matter to their attention. In the circumstances I can see that nothing would be lost by the Government again writing to the Law Society and all other interested bodies on, one trusts, the confirmation of this order, further drawing the attention of lawyers (who represent nearly 100 per cent of all such people) to the potential for making claims in what are relatively tight circumstances, should they believe that they have a case to make. The Government would not want anyone not to be able to make a legitimate claim through ignorance—without wanting to raise hopes of there being a vast army of such people able to do so.

Baroness Noakes: My Lords, on a point of clarification. When evidence was given to the Joint Committee, much reference was made to an ex gratia scheme. It was referred to several times in a letter from a Department of Health Minister. As I understand it, the Minister is now saying that there is no scheme—that there is a set of principles but it will be applied on an ad hoc basis. Is there a scheme to which a body—perhaps the Law Society, although I encourage the Department of Health to consult a little wider among any bodies that may represent patients and are concerned with their rights to compensation—can look to know what they can expect from the Government?

Lord Filkin: My Lords, the principles of compensation will be determined, first, by the Strasbourg principles, which concern for how long a person had been detained against his will without adequate evidence to justify his detention. The level of compensation will be determined based on case law and principles, of which there is a considerable amount, in all the circumstances. Then an offer will be made by the department to the person's lawyer. I am confident that that will be done fairly. When we spoke with officials earlier this week, both my fellow Minister, Jacqui Smith, and I stressed the importance of clear principles, clear propriety and fairness.
	I should also stress the question of numbers. It is perfectly possible that there will be no such cases whatsoever. Of course, that does not for a second mean that we should not ensure that the process is properly provided for. On the other hand, the circumstances are fairly rare. The Joint Committee recognised that it was perfectly possible that there would be no such cases.
	With regard to guardianship, it does not deprive liberty, so there is no incompatibility under the Human Rights Act 1998.
	I turn to the questions posed by the noble Lord, Lord Clement-Jones. First, he asked: why is the order before the House in April when it was tabled in July? The first order was tabled under the non-urgent procedure. It was therefore retabled in November under the urgent procedure.
	The effect of that was that on the following day, I think, it came into immediate effect. That therefore remedied the incompatibility, but 120 days are allowed from the making of the order until its final ratification by Parliament—that is, 120 parliamentary rather than calendar days. Although that appears to be a long time, in practice it was a product of the movement from the non-urgent to the urgent procedure in the light of the JCHR's advice and no delay was suffered by the public as a consequence of using the urgent procedure, because the order was effective in November.
	The final point raised by the noble Lord, Lord Clement-Jones, concerned the need for legislation to replace the 1983 Act, which is itself largely based on 1950s legislation. The Government—certainly the Department of Health—could not agree more with the noble Lord. Clearly, that issue will find its usual place in discussion on the Government's future legislative priorities, and one can but wish it God speed in that process. I commend the order to the House.

On Question, Motion agreed to.

Electricity and Gas (Determination of Turnover for Penalties) Order 2002

Lord McIntosh of Haringey: rose to move, That the draft order laid before the House on 28th February be approved [22nd Report from the Joint Committee].

Lord McIntosh of Haringey: My Lords, I beg to move that the order laid before the House on 28th February be approved.
	The effect of the order is to introduce measures to determine turnover for gas and electricity licensees for the purpose of calculating the maximum financial penalty that may be applied by the Gas and Electricity Markets Authority in any particular case.
	The order will complete the arrangements to provide for financial penalties to be imposed on gas and electricity licensees who breach licence conditions or certain requirements imposed by the Gas Act 1986, or the Electricity Act 1989, as amended by the Utilities Act 2000, or who fail to achieve prescribed standards of performance. The powers for the regulatory authority to impose financial penalties are intended to have a strong deterrent effect on breaches of conditions and requirements and failure to meet standards of performance. That is important to secure fair treatment for customers and fair competition in the market.
	Licensees who take care to meet their obligations have nothing to fear. Those who are less careful will need to take note and mend their ways. The main outcome we seek is not lots of fines but good standards of compliance. The House will recognise the importance of achieving better standards for customers through better compliance by gas and electricity companies.
	The Utilities Act 2000 made provision for financial penalties to be imposed by the authority, subject to certain safeguards. The Act provides that the maximum penalty is 10 per cent of turnover and that turnover is to be determined by order. The amount of the penalty must be reasonable in all the circumstances of the case. In deciding whether to impose a penalty and on its amount, the Gas and Electricity Markets Authority must have regard to its published statement of policy. Those principles are set out in the primary legislation. Together, they provide significant comfort that any penalties imposed will be fair and reasonable.
	There are two aspects to defining turnover: the scope and the period. The Act states that the turnover to be taken into account is that of the licensee. That defines the scope. Turnover for the purposes of the Act is to be determined in accordance with the provisions of the order from the entire turnover of the licensee derived from provision of goods and services falling within all the ordinary activities of the licensee—not merely those activities taking place in Great Britain.
	The order defines the period for which the turnover is to be computed as the business year preceding the issue of a notice by the authority that it intends to impose a penalty. Where there is no preceding business year, the order provides that the turnover should be the turnover of the licensee for the preceding 12 months. Where there is turnover for less than 12 months, the order provides that the turnover should be grossed up accordingly.
	Those measures represent a fair implementation of the provisions of the Act, with appropriate safeguards in place. I also draw the attention of the House to the statement of policy on financial penalties by the authority published by Ofgem. Implementation of the order will provide a sound and fair basis for calculating the turnover. I can confirm that, in my view, the provisions of the draft order are compatible with the convention rights and I commend the order to the House.
	Moved, That the draft order laid before the House on 28th February be approved [22nd Report from the Joint Committee].—(Lord McIntosh of Haringey.)

Baroness Seccombe: My Lords, I thank the Minister for his usual clear explanation of the order, which was received by the committee on delegated legislation in the other place with unanimity, as I am sure that it will be here.
	I should like to make only one minor point. Not only do I thank the Minister for his explanation, I congratulate the energy policy directorate of the Department of Trade and Industry on its excellent background briefing note, which saved me a great deal of research time, as I am sure that it did for the Members of the House of Commons committee. That is in marked contrast to the Explanatory Notes printed with the order, which were rightly criticised as "wholly inadequate" by the honourable Member for Thurrock.
	In theory, as public documents, such orders and notes may be read by ordinary members of the public, as distinct from specialists in the field. As the Explanatory Note is not part of the order, as it states in its heading, perhaps the Secretary of State would care to consider substituting his department's parliamentary brief for that of the draft order. I also hope that in the case of future orders on any of the complex subjects with which the DTI deals, it will consider writing Explanatory Notes as if they are to read by a layman, as distinct from a specialist.
	The Minister in another place was asked by the honourable Member for Hazel Grove what would happen to penalties, which, in the case of the gas and electricity industries, could be substantial sums. The honourable gentleman pointed out that in the case of the penalties payable in respect of the renewables obligations, they were to be recycled to the industry. The Minister did not reply. Can the Minister tell us about that today?
	Although, as I said, I do not like the Explanatory Notes, I am pleased to concur with the draft order, on behalf of the Conservative Benches.

Lord Addington: My Lords, I congratulate the Minister on finally convincing me that I had understood the order. I have read it several times today. The Explanatory Notes have already received sufficient—shall we say—damning praise; it was not the clearest document that any of us have ever read.
	I read the proceedings in the House of Commons, and most of the interesting stuff consisted of stories and anecdotes about dreadful mis-selling fiascos. However, as was made clear then, the order has nothing to do with those; it is merely concerned with the calculation of penalties. Anyone who has been on the receiving end of one or two of those penalties might feel that 10 per cent was rather a low figure, but I cannot make any criticism of the document in front of us.

Lord McIntosh of Haringey: My Lords, I am grateful for the reception given to the order by both noble Lords. The only substantial point that I must answer relates to what happens to the money raised in financial penalties. It goes into the Consolidated Fund. I am sure that taxpayers will be glad to hear that.
	This order is not like the renewables order, which is designed to achieve a particular environmental effect, such as the climate change levy, in a revenue-neutral way. The renewables order is not an attempt to raise money from the industry, and it is not a penalty. Those who lose out under the renewables order have not done anything wrong; they must simply defer to the higher interest of the environment. Anyone who breaches the rules of the gas and electricity markets authority will have done something wrong. It is right that they should be penalised and that the taxpayer should benefit.

On Question, Motion agreed to.

National Health Service Reform and Health Care Professions Bill

House again in Committee.
	Clause 18 [Supplementary]:
	[Amendments Nos. 116 to 118 not moved.]

Earl Howe: moved Amendment No. 119:
	Page 23, line 27, after "Authority," insert "an overview and scrutiny committee or joint committee within the meaning of sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001 (c. 15),"

Earl Howe: In moving Amendment No. 119, I shall also speak to Amendments Nos. 120, 122 and 149.
	As the Committee will know, I have criticised the Government's proposals for patient and public involvement on several grounds. Perhaps my most fundamental objection to the new arrangements that are to replace CHCs is their fragmented structure. If we are to minimise the effect of that fragmentation, we must ensure that the bodies tasked with different aspects of the watchdog remit perform the functions that they are supposed to perform and communicate properly with each other. As far as possible, in other words, the system should be joined-up.
	The scrutiny function currently undertaken by CHCs is being transferred to the overview and scrutiny committees of the local authorities. The inspection function is to be transferred to patients forums. In another place, the Government helpfully accepted an amendment that gave patients forums the right to refer matters of concern to the overview and scrutiny committees. However, it is noticeable that, under the current wording of the Bill, the OSCs have no specific duty to act upon such referrals. There should be no constraints on OSCs in reaching their conclusions on matters referred to them, but they should have a duty to consider them.
	Similarly, when an overview and scrutiny committee receives a report or a recommendation from a patients forum—perhaps following an inspection—there should be no loophole in the law that would give it an excuse to sit back and do nothing about it. It should be required to comment on the report or recommendation. My amendment would confer that duty on OSCs.
	The flow of information should be in two directions. In setting about its work, an overview and scrutiny committee may have access to all kinds of relevant information at local authority level that could usefully inform the work of the patients forum. For example, there may be relevant information about the costs or other aspects of private sector contracts or partnership arrangements. My amendment would ensure that the regulations allow for the provision of information by an overview and scrutiny committee to a patients forum. I beg to move.

Lord Clement-Jones: I shall speak to Amendment No. 149, which deals with the question of the duty of overview and scrutiny committees to carry out the scrutiny function. I shall be brief, for we have discussed this already.
	We believe that it is a flaw in the original Health and Social Care Act 2001 that there is no duty to carry out scrutiny functions. The Act is simply permissive. Paragraph 1 of Schedule 7 to the National Health Service Act 1977 puts each community health council under a duty to,
	"represent the interests in the health service of the public in its district; and
	(b) to perform such other functions as may be conferred on it".
	The CHC regulations of 1996 expanded on that duty. Regulation 17 placed a duty on each CHC to,
	"keep under review the operation of the health service in its district, to make recommendations for the improvement of that service and to advise any health authority upon such matters relating to the operation of the health service within its district as the Council thinks fit".
	It would seem that, in some senses, we are going backwards, if there is to be no duty. Everyone accepts that the power of scrutiny is important. Without a duty, some local authorities could choose not to exercise the power, leaving the local community without CHCs—or, if the Minister had his way, patient councils—or OSCs scrutinising the National Health Service. That would be a retrograde step.

Lord Filkin: The introduction of overview and scrutiny by local government, under the Local Government Act 2000, gives people a genuine say in their local services. In the case of health, that will, for the first time, make the NHS answerable for its performance to locally elected councillors and to the local community, through the local authority. That will go a considerable way towards ending the democratic deficit that has long been recognised as an issue for the NHS. It is relevant to the discussion of the amendments to say how warmly that has been welcomed by local authorities and by local government collectively, through the LGA. It has long been argued for, and the best local authorities have tried to perform elements of it, without a particularly affirmed role. The Government are confident that there will be a positive response, albeit that such things take time to bed in.
	A key principle for the Government is the right of the public to expect its concerns over major changes to health services to be expressed through a form of scrutiny process. Local NHS bodies must consult their local authority overview and scrutiny committees on substantial developments of the health service in the council area, as well as on any proposals to make substantial variations to the provision of such services. This in itself is a very major change in terms of recognising the duty to consult and involve. Overview and scrutiny provides a way of ensuring that needs have been properly identified and that services delivered by local partners do promote the well-being of the local communities they are designed to serve.
	However, we do not think it necessary to place a duty on local government to scrutinise the NHS with quite the formality that has been suggested. We think it appropriate for local government, in the context of its responsibilities for the well-being of local populations, to take into account the health services of those people, which of course is why the power was given under the Local Government Act 2000 to promote the overall well-being of local communities. Again, that was very strongly welcomed by local authorities and government when it was introduced.
	Locally elected representatives should make their own decisions about what scrutiny activity takes place. One cannot believe in local authorities as the representatives of their communities in the diverse circumstances in which they find themselves and then not give them the freedom to make judgments about what areas of health service performance strike them as being of priority for scrutiny at any particular point in time. For that reason, we have provided the power for them to scrutinise the NHS as they deem appropriate.
	We have placed duties on the NHS to provide information and to consult with OSCs. Thus the Government have affirmed the importance of the role of the OSCs by those very measures. We shall also set out in regulations the arrangements by which NHS staff will be required to attend OSC meetings. To add further to these arrangements by compelling OSCs to undertake their scrutiny functions would, we believe, be going too far. These decisions are best made by councillors elected by local people.
	Concerns have been expressed that some local authorities might not be very serious about these functions. On the one hand, one recognises that all local authorities will go through a period of development and learning, which is why the Government, the LGA and others are serious to see that support and development is given in the shaping of these new roles. I find it inconceivable that the social services authorities, which are the relevant authorities for overview and scrutiny over health matters, would not have very strong areas of concern and interest. Therefore they will treat their overview and scrutiny functions very seriously indeed. One would expect these functions to be high up the list of issues, commanding considerable interest in a local authority. In the remote circumstances that one authority might be slower off the mark than others, I should have thought that it would be castigated by its public for such a gross failure to act as its voice and advocate on health matters.
	Amendment No. 119 seeks to give patients forums powers to require information from local authority overview and scrutiny committees. We think this degree of power is too wide and inappropriate. We certainly wish to encourage good communication links between forums and OSCs; indeed, we have already amended the Bill to give forums the power of referral to OSCs.
	I would suggest that Amendment No. 120 flies in the face of giving the power to scrutinise the NHS to an independent body. We have always said that local government must take a view on what action to take in respect of its responsibilities for the well-being of local people. It is in this context that decisions and actions taken by OSCs should be governed. Requiring them to respond to and act upon referrals from patients forums is out of kilter with our whole approach, in that OSCs are not the servants of them. If a local authority OSC believes that a response or action is appropriate, then it is free to do so. Compelling an independent body from the centre is not appropriate.
	However, we hope and expect overview and scrutiny committees and patients forums increasingly to recognise their overlapping areas of interest. They will have differing functions, but clearly they could provide strong mutual support for one another. The thrust of government advice and implementation will be very strongly to promote that kind of joint co-operation, which the noble Earl, Lord Howe, has quite rightly advocated, underpinning the purpose of his proposed amendment.
	In the light of the very strong support expressed by local government for powers of overview and scrutiny over the health service, I do not think that there is a need to go so far as to place a specific duty here, because we have considerable confidence that, over a period of years, this will develop into a powerful and important new way of contributing to improvements in the health service and reflecting the interests of local people in health service provision in their area.

Lord Clement-Jones: I am not an expert in local government matters. Before he sits down, can the Minister explain what consideration has been given to providing resources for local authorities to enable them to carry out their overview and scrutiny role?

Lord Filkin: It will come as no surprise to the noble Lord that such matters form part of the Budget considerations and will form part of the considerations for the Comprehensive Spending Review itself. Whenever it imposes a new duty on local government, the DTLR is under an obligation to make an assessment of the resource impact of that duty. Therefore, from April this year it will form a part of the SSA settlement made to local authorities. In the future, these will be matters considered by the Comprehensive Spending Review.

Baroness Carnegy of Lour: If the Government do not know whether a local authority is going to do this and, if it does, to what extent it will undertake the new role, how will they know what resources to make available?

Lord Filkin: There are traditional negotiations and discussions between the finance specialists at the Local Government Association and the finance specialists in the DTLR. Without going into excessive detail, between them they attempt to estimate what will be the cost burden of such new functions.
	We should recognise that, in these matters, local authorities are free to set their own priorities as regards where they put the burden of their expenditure. Thus there are traditional expenditure negotiation routes between the LGA and the DTLR to make such assessments.

Lord Clement-Jones: Perhaps I may ask a further question. Is there any intention to gather information about the resources devoted by local authorities to the functions of overview and scrutiny? The argument that is current, with which I agree, is that the full vigour may not be applied by every local authority to the role of overview and scrutiny, which will be reflected in the resources the authority devotes to it. However, I think it is important for information about the resources devoted to the role to be made available in future financial years.

Lord Filkin: Speaking as one who knows and loves local government very well, I can guarantee that authorities will say that they do not have sufficient resources. It would be a strange world if they did not do so. More seriously, however, I am pretty confident that the DTLR has under way two research studies on the operation of overview and scrutiny committees, given that this is such a substantial and important new development for local government. I can do no more than say that we shall draw to their attention the interest there might be in monitoring the resource impact as a part of those studies, if the terms of reference of those studies make that possible.

Earl Howe: I am most grateful to the Minister for his full reply. I was pleased to hear him confirm that the Government are fully in favour of promoting joint co-operation between patients forums and overview and scrutiny committees. I agree that the system being set up in relation to OSCs has the potential to perform a useful function, but the question I ask is why, for the past 20-odd years, it has been appropriate to give local communities a guarantee that their health services would be scrutinised, but now that is no longer appropriate. I do not know what has made that unnecessary.
	As I said earlier, I want to see the new system working well, because as the Bill is drafted, at least on the face of it the proposals will give us a less robust system than we have at the moment. There is no guarantee that overview and scrutiny committees will scrutinise health issues and no redress if they do not do so. One can imagine all kinds of things interfering with the best intentions. Priorities always have to be set and agreed at local government level and party politics play a part. One can envisage the system perhaps not working as smoothly as the Minister has made out. On the basis of what he has said, we can only hope that the intentions will be borne out.

Lord Filkin: It may help if I give some illustrations of the range of areas of interest between local government and the health of communities which make it almost inconceivable that overview and scrutiny would not be treated seriously, albeit it in different ways in different areas and treating certain issues more frequently.
	Overview and scrutiny committees will not duplicate what the patients forums will do. It would be surprising if they spent large amounts of time looking at whether emergency care functions in A&E were working well in a local hospital. Clearly the patient forum is much better placed to do that. On the other hand, one would expect that they would look at issues affecting public health—for instance, smoking cessation campaigns, promotion of positive health, the impact of transport facilities on health and the impact of a range of other issues such as housing conditions, housing and insulation on health. They would look across the piece at how, for example, disabled people may be being treated in the community and how that interconnected with health.
	They will help the health service not simply by looking again at a particular function of the NHS—which the patients forums may do—but by looking thematically or from the point of view of a particular interest, a particular group of people or a particular service with which they themselves are concerned, by seeing the interconnection with the health service and by recognising the need to strengthen those interconnections more effectively for the public.
	There are myriad connections and interests. The committees will not carry out these functions in the same way but it is most unlikely that they will not see them as important functions.

Earl Howe: I thank the Minister for that additional clarification. It was very helpful in fleshing out our understanding of what the overview and scrutiny committees will do. I shall read carefully what the Minister said between now and Report stage. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 120 to 126 not moved.]
	[Amendment No. 127 had been withdrawn from the Marshalled List.]
	Clause 18 agreed to.
	Clause 19 [The Commission for Patient and Public Involvement in Health]:

Lord Clement-Jones: moved Amendment No. 128:
	Page 24, line 21, after "Commission" insert "shall represent the interests in the health service of patients and the wider community and"

Lord Clement-Jones: Amendment No. 128 and the associated amendments seek to ensure that the new proposed Commission for Patient and Public Involvement in Health is not limited in its functions.
	There are enough experts and noble Lords with a local government background in the Committee today to know that statutory bodies are able to carry out only activities and functions conferred on them by statute, otherwise they would be acting ultra vires. They are powerless to extend their own remit. Any act they perform which is outside the limits placed on them in legislation will be subject to legal challenge.
	At present, community health councils and the Association of Community Health Councils are able to carry out a wide variety of activities because the enabling statute provides that each CHC is to,
	"represent the interests in the health service of the public in its district and . . . to perform such other functions as may be conferred on it by virtue of paragraph 2 below".
	The statute also provides that ACHCEW, the Association of Community Health Councils, will,
	"advise Councils with respect to the performance of their functions, and to assist councils in the performance of their functions; and . . . to perform such other functions as may be prescribed".
	That is contained in the 1977 Act.
	Through being charged with advising and assisting CHCs, ACHCEW is thus able to benefit from the wide remit afforded to CHCs. If Clause 19 remains unamended, the commission, for example, will be unable to carry out many of ACHCEW's current functions. These include research and policy work; conducting casualty watch type exercises; running or engaging in national campaigns or making donations to those campaigns; campaigning about national changes of policy affecting the health service; commenting on guidance issued by bodies such as the GMC beyond those concerns which may fall within the remit of Clause 19(6); and taking legal proceedings. Activities such as these would be ultra vires.
	To some extent, this is the converse of the previous amendment relating to the powers of patients forums at local level. It applies in equal measure in terms of the national scene and the commission's powers at national level. If the Government are genuine in their desire to empower patients and the public, they need to expand the commission's remit.
	It would be useful at this stage—there will not be many opportunities to do so—if the Minister could indicate the kind of funding that may be available for the commission in carrying out its powers. Whatever view the Minister has about the width of those powers, we believe that there is a danger that the commission will be under-resourced and not have an adequate staffing level. As the efficacy of patients forums will rely heavily on the staffing provided by the commission, that would be extremely dangerous. It would mean that the new system will not work in anything like the way that the Government hope that it will.
	Amendments Nos. 133 and 135 are ancillary amendments which follow Amendment No. 128. I beg to move.

Lord Harris of Haringey: The creation of the Commission for Patient and Public Involvement in Health is a critical change in the Government's proposals and is of extreme importance. I have some sympathy with the amendment moved by the noble Lord, Lord Clement-Jones, but I am slightly confused about the way in which it is worded. It seems to me that subsection (2)(g) almost achieves what he seeks to put into the preamble about the commission's functions. The only difference is that subsection 2(g) refers to the views of members of the public whereas his amendment refers to the interests of the public.
	That is an important and critical distinction. I should like to see a situation whereby the commission was able to present its own judgment on the interests of the public and, at the same time, have an obligation to present the views of the public. I am not sure whether the noble Lord has worded his amendment deliberately or whether it is an accident of drafting.

Lord Hunt of Kings Heath: This brings us to the very important role of the Commission for Patient and Public Involvement in Health. As my noble friend Lord Harris suggested, it is an important part of the whole package of measures designed to improve public and patient involvement. They build on the Health and Social Care Act 2001 and I pay tribute to the noble Lord for his original work in relation to a national body.
	It was apparent during the passage of the original Bill that a national body with a remit for overseeing the delivery of the Government's proposals was a missing link from the proposals. The commission will have an important role to play in future as an independent body that operates at arm's length from the department. It will have roles nationally and locally across the country.
	In earlier debates my noble friend Lord Harris urged a national body to play a role in encouraging a high standard of performance in relation to local patient involvement bodies. Crucially, the commission will set standards for patients forums and providers of independent complaints advocacy. It will also report to the Government on the implementation of the new structures. The commission will have the explicit role of working in communities to ensure that local people have a say in decisions that affect their health and the health services. It will do that by promoting local consultation exercises—advertising them where they might not normally be advertised; helping people to get involved; giving people the necessary skills and confidence to contribute by organising training courses; and suggesting different ways for them to contribute.
	The commission will also have a key role in developing and promoting innovative ways of getting people involved—especially segments of the population who traditionally might not become involved, such as people from ethnic minority groups, older people, people with disabilities and homeless people.
	Amendment No. 128 would add the new function to the commission of representing the interests of patients and the wider community. We discussed that particular form of wording in relation to patients forums. The arguments that I used then apply equally to the commission. I do not believe that it is appropriate for an appointed body to be given such an all-embracing power, which should lie with Parliament. The noble Lord suggests too wide a function for the commission to undertake. It is being established specifically to empower patients and the public, not to speak on behalf of the entire population. The commission's work of empowering the voices of local people will allow real changes to be made.
	Amendment No. 133 would add a function to provide staff, facilities and services to patients forums. The Bill already makes it clear in Clause 19(2)(d) that the commission will support the work of patients forums. By that we specifically mean that the commission's staff will provide information, briefing, administrative support and help to plan activities. More important is the commission's role in developing the capacity of forums to play their role. I re-emphasise the running of training places; developing the skills and competence of forum members; and devising effective work programmes.
	The noble Lord asked about resources. He is premature in terms of receiving a direct response but clearly there would be little point in establishing such a commission if it were not effectively resourced to meet the serious responsibilities being laid upon it.
	Amendment No. 135 provides for the commission to exercise its functions by reference to overview and scrutiny committee areas instead of primary care trust areas. There is an argument both ways but the Government's preference for PCTs in the Bill makes clear our commitment to the commission working at local community level. The PCT level is the right one, although of course the commission will feed into OSCs, as the reporting arrangements in the Bill make explicit.
	The Bill's reference to primary care trusts spells out the intention that the commission will get into local communities and promote patient and public involvement at the level where front-line services are decided and funded. I well understand why the noble Lord wants to make a link at OSC level but, given the particular responsibilities of PCTs and that they are the principal public health authority, there is a persuasive argument for the commission paying particular attention to the PCT level.
	We understand that there are other important connections and that informing the scrutiny process is critical. We have taken account of that in the commission's reporting arrangements. The connection to the performance management of local NHS organisations is also critical, so we have ensured that the commission reports to the strategic health authorities.
	I do not apologise for saying that shifting the balance to PCTs and the areas that they cover is important in relation to public and patient care involvement—as to many of the other decentralisation measures, which is a theme running through the Bill.

Lord Clement-Jones: The Minister seemed to miss out most of the red meat of public debate. Is he saying that it will not be possible for the commission to engage in a national campaign or one about policy changes affecting the health service? Will it not be able to comment on guidance issued by professional bodies that are not acute trusts or PCTs? Is the Minister saying that the campaigning element will be completely absent?

Lord Hunt of Kings Heath: The commission will have a crucial role in bringing to the Government's attention issues relating to the way in which the health service is involving the public in local decision making. Clause 19(2)(b) gives a clear function in advising the Secretary of State in relation to advocacy services. Subsection (2)(c) gives the commission a clear function in representing to the Secretary of State and to other prescribed bodies arrangements in relation to patients forums. It allows the commission to provide assistance to patients forums, to advise and assist providers of independent advocacy services, and to set quality standards. Those seem to me to be wide-ranging functions which will enable the whole public involvement in the NHS to be much more effective than it is at present.

Lord Clement-Jones: I am sure that the Minister is quite genuine in his response. However, the worry in relation to Clause 19 is that we are merely creating a tame poodle—that the commission will not have teeth. I know that this Government are not particularly fond of public debate, but those who want to see the commission prosper want it to be able to engage in public debate, to represent the interests of local patients and the public and to be able to debate and campaign in a robust way. That is a perfectly legitimate thing to do in a democracy in regard to what is probably the most important area of public service that we have.
	There is the huge suspicion—which I share—that Clause 19 represents an emasculation of what we already have. I recognise the Minister's sincerity. I am sure that lawyers will pore over his words as they will be used to interpret Clause 19 in due course, and to that extent they may find his words helpful. However, there is the suspicion that the provision does not go nearly far enough. That is a matter of great regret.
	I hope that the Minister will consider the matter further. I share the view that at national level the commission is an important body. Where we clearly differ—as in the debate on patients' councils—is on what role the commission should play at local level and whether people should rely on what is effectively a government body to do the campaigning for them at local level.

Lord Hunt of Kings Heath: In my reference to Clause 19 I missed out subsection (2)(g), which states that the commission has the function of,
	"representing to persons and bodies which exercise functions in relation to any area . . . the views of members of the public in that area about matters affecting their health".
	That goes very wide.

Lord Clement-Jones: Those are slightly weasel words. I did not respond to the noble Lord, Lord Harris, for which I apologise. The positioning of the amendment at the beginning of the clause was designed to elicit a response from the Minister at large, rather than in regard to the individual subsections.
	I still do not believe that that gives a great deal of comfort. It is highly targeted forms of representation—not, for instance, a media campaign—which would be legitimised by paragraph (g). I believe that the Minister would have to accept that in terms of the interpretation of the clause.
	Everything is carefully parcelled up. I am sure that these clauses have been drafted for a purpose. The thinking has been: "Yes, but we must not give them too much". That is the key worry. I do not intend to press the amendment at this stage. However, we may wish to return to it. I believe, in common with many others, that the powers of the commission will be crucial. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 129 to 131 not moved.]
	[Amendment No. 132 had been withdrawn from the Marshalled List.]
	[Amendments Nos. 133 to 136 not moved.]
	Clause 19 agreed to.
	Schedule 6 [The Commission for Patient and Public Involvement in Health]:

Lord Clement-Jones: moved Amendment No. 137:
	Page 85, line 2, leave out from beginning to second "the"

Lord Clement-Jones: Perhaps I may pick up a further strand relating to the commission. I believe that the noble Earl, Lord Howe, will speak to the remainder of the amendments in this group. I shall not elaborate on the issue at great length.
	The point has arisen that the commission should be free of the trammels of the Secretary of State. This is a running theme throughout the Bill. Most of us on the Opposition Benches are agreed that the Bill—despite having the intention of decentralisation—in actuality takes considerable extra power for the Secretary of State. This is just another example. The Commission for Patient and Public Involvement in Health will be subject to directions given by the Secretary of State. Effectively, therefore, it will be the creature of the Secretary of State.
	If the Secretary of State and his ministerial colleagues really wanted to give the assurance that this body would be a robust public representative that could challenge and scrutinise and do all the things that it needs to do, they would agree to the removal of these words. It should be wholly independent of the Secretary of State and of any possible political interference and, if it were, it would enjoy much greater all-party support and, no doubt, that of patients' organisations as well. I beg to move.

Earl Howe: I rise to speak to Amendments Nos. 138, 139 and 141. I am sorry to say that, due to an error, Amendment No. 140 was withdrawn without reference to me, but I trust that I may speak to it briefly.
	The Commission for Patient and Public Involvement in Health, which is to be established under Clause 19, will, as the Minister said, have a major role to play in ensuring that the new arrangements that will replace CHCs really work. At national level, it will have the task of issuing guidance and providing training, as well as advising the Secretary of State. At local level, its function will be to support the work of patients forums and to provide wider community involvement in local health decisions. Just as patients forums need to be independent of the trusts to which they relate, so too does the commission need to be independent. What is more, it needs to be seen to be so.
	It is, therefore, anomalous that Schedule 6 to the Bill should provide for the chairman of the commission to be appointed by the Secretary of State. There should be a bottom-up, rather than a top-down, approach to appointments in the commission. The first chairman of the commission is, perhaps, a separate case, but even he or she should be appointed by the NHS Appointments Commission rather than by the Secretary of State. Subsequent chairmen should, in my view, be appointed by members of the commission. That formula would ensure that the commission was independent, and it would remove any possibility of political interference. Unless the commission is independent in that sense, it cannot gain the full confidence of patients' organisations. We would do well to bear in mind that the Secretary of State does not even appoint the chairmen of NHS trusts nowadays. So one has to ask why he should have the power of appointment over the chairmanship of a body such as this, which has a much greater need than any NHS trust to prove an absence of political bias.
	Then we come to the membership itself. If the majority of members of the commission are nominated and elected by patients forums, that will ensure its democratic accountability to the main patients' representation bodies. That is what Amendment No. 139 proposes. Similarly, I ask why it should be the Secretary of State who appoints the first chief executive. The chairman and members of the commission should do that themselves; they should also determine the terms and conditions of his or her employment. The chief executive must have credibility as an independently appointed champion of patient representation. That will hardly be the case if people regard him or her as a political appointee.

Lord Hunt of Kings Heath: These amendments concern the level of control and accountability that the Secretary of State has with regard to the commission in two areas: appointments and funding. Schedule 6 is based on standard guidance from the Cabinet Office on the setting up of executive non-departmental public bodies, and replicates what has already been applied in the case of the Commission for Health Improvement.
	The commission will be an independent organisation, but, because it is to be publicly funded, there has to be some form of formal accountability to Parliament, in addition to its making annual reports to the Secretary of State. The clauses and the schedule in the Bill before your Lordships tonight are based on that principle. Because the functions of the commission will be set out in statute, the Secretary of State has a responsibility to Parliament and to the public to ensure that it is able to carry them out. One of the ways of making that possible is through the key appointments to the commission.
	The chair and the chief executive will need to be able to account for the commission's actions to the Secretary of State, who, in turn, is accountable to Parliament. This process provides Parliament with a tool for holding Ministers to account over the performance of non-departmental public bodies. I do not believe that the commission is different from any of the other important non-departmental bodies that have been established in relation to the National Health Service.
	Amendment No. 138 would remove the Secretary of State's ability to appoint the chair. If the Secretary of State did not appoint the first chair, who would? Although the Secretary of State could delegate the appointment to the NHS Appointments Commission—as he does in the case of local organisations—in the end, it is a Secretary of State appointment.
	As I said earlier on Amendment No. 104A, it is a necessary part of the constitutional arrangements to ensure public accountability that the Secretary of State appoints the chair of the commission. I do not see why this commission should be seen as any different from any of the other seven executive non-departmental public bodies that the department is concerned with.
	Amendment No. 141, which is consequential on Amendment No. 140, would remove the Secretary of State's ability to appoint the first chief executive of the commission. It is our intention that subsequent chief executives would be appointed by the commission, but it is not unusual when establishing new organisations for the Secretary of State to make the first appointment, as happened in the case of the Commission for Health Improvement. This is not to do with issues of independence; it is simply to do with the fact that unless the Secretary of State is able to make such an appointment, there can be a long delay before the chief executive is in place. We all agree that, because of its importance, the commission should be up and running as quickly as possible.
	Amendment No. 139 makes the valid and interesting suggestion that appointments to the board should be elected and nominated by patients forums. However, it would turn the commission into a patients forum representative body. The commission has a vital role to play in relation to the work of patients forums, but it is not there simply to act as a mouthpiece for them. It is a national resource for everyone who wants to speak up on matters that affect their health.
	We want the board members of the commission to be of the highest possible calibre. Recruitment of the chair, chief executive and board members will be through open competition. We want the net to be cast far and wide. It should certainly not be confined to patients forum nominees or representatives.
	As I said on Amendment No. 104A with regard to CHI, the commission will be funded from public money. There has to be a mechanism for ensuring that the money allocated to it is spent on enabling it to discharge its functions. The suggestion in Amendments Nos. 137, 142, 143, 144 and 145 seems to be that the Secretary of State should have no power of direction over how the commission should spend the money it is allocated. Instead, that accountability would be provided only through conditions attached to funding. That approach is more limiting. It would restrict what the commission could spend its money on to what was set out in the conditions. Directions could be added throughout the year, thus giving more flexibility.
	As I said on Amendment No. 104A, if a serious problem arose in relation to the commission's activity or governance that, for whatever reason, the commission was failing to address, it would surely be right that the Secretary of State, who is accountable to Parliament for how that body acts, should be able to take whatever action is necessary at the time. If a non-departmental public body receives funds from the Secretary of State, as in the case of the commission, it is appropriate and necessary for there to be some control to guard against financial impropriety and to ensure that the funds are applied for proper purposes, as set out in the Bill.
	The Government want the commission to be as effective as possible. We want it to have as strong a membership and staff as can be. We shall do everything we can to support that. However, as with any non-departmental public body, there must also be safeguards for the public purse and public accountability. That is why the Bill is drafted as it is.

Earl Howe: Perhaps I could just ask a question on the funding of the commission. So far as I know, there has been no indication from the Government thus far about the amount of funding available for the new structures. However, strong hints have been dropped within the Department of Health that the commission will be expected to subsist on even fewer staff than CHCs have nationally. If that is so, given that the commission is to have even more responsibilities than CHCs and that CHCs are already under-resourced, we may find ourselves looking at a system that is completely unable to function as currently envisaged.
	It would be very helpful if the Minister could give the Committee at least some indication of the funding and staffing levels that he expects the commission to have. For example, given that the commission's role involves supporting patients forums as well as much else, will there be at least the equivalent of one full-time member of staff per patients forum? Has the Government's thinking advanced to that sort of level?

Lord Hunt of Kings Heath: I am not in a position to respond in the detail that the noble Earl would like. These matters are still being discussed within the department, and of course we are subject to the normal processes of future budgeting. As for the resources likely to be spent as a result of all the changes that are being made, as I said, I have absolutely no doubt that we shall be spending more resources and that there will be greater public and patient involvement in bodies such as the commission, the forums, the independent advocacy service, the patient advocacy and liaison services and even in local authority overview and scrutiny committees. There will undoubtedly be more resources and more people.
	Although I cannot give more detail than that, I tell the noble Earl that we shall fund the commission as appropriate to perform its important functions. The commission has an important role to play in helping patients forums to be as effective as possible, and we shall have to ensure that it has the funds it needs to play that role effectively.

Lord Clement-Jones: I thank the Minister for that coda. However, considering how long these proposals have been on the table and the length of the consultation, it is very disappointing that all he can say is that more resources will be available than there are now. That is not particularly reassuring and it does not provide any specifics on the precise nature of the resources. As resources are a pretty important part of the effectiveness of the arrangements, I should have thought that that subject would be uppermost in Ministers' minds. It is regrettable that we must consider the legislation in such circumstances.
	We are getting better at rolling our tongues round the phrase "executive non-departmental public body". I am grateful to the Minister for telling us how many such bodies so far are accountable to the Secretary of State. Nevertheless, the Minister's speech amounted to saying, "Those are the constitutional arrangements, and the Secretary of State must have that control because he is accountable for these non-departmental public bodies". That is a very circular argument. There is absolutely no earthly reason why the commission should not be accountable to a Select Committee of the House of Commons or of this place, or indeed to a Joint Committee. The commission does not have to be accountable, ipso facto, to the Secretary of State.
	If the Minister wishes to have fewer sleepless nights and worry less about the finances of all these executive non-departmental public bodies, it would do him a power of good to think laterally and perhaps about how these bodies can be made accountable to a Select Committee. That would be a healthy development.
	I therefore do not buy into the Minister's constitutional argument, although it was quite novel and I congratulate him on his creativity in coming up with that constitutional view. Nevertheless, centralising power is not a constitutional necessity. It is perfectly possible to decentralise and to do so in a genuine way. I believe that the Government are looking down the wrong end of the telescope with this commission. They have got it completely the wrong way round. It should be a commission that relies from the bottom up on the strength of the community, patients and public on the ground, not on the Secretary of State's fears. My amendments and those of the noble Earl, Lord Howe, all go in the same direction, which is trying to achieve a from the bottom up aspect.
	I have no doubt that we shall be discussing these matters further, and I am sure that the Minister is in no doubt about the tenor of our remarks and the direction in which we want to go. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 138 and 139 not moved.]
	[Amendment No. 140 had been withdrawn from the Marshalled List.]
	[Amendment No. 141 not moved.]

Lord Harris of Haringey: moved Amendment No. 141A:
	Page 86, line 15, at end insert—
	"( ) Employees appointed under sub-paragraph (4) who provide support to a Patients' Forum or Patients' Forums established under section 15(1) in accordance with regulations made under section 18(2)(h), shall have work programmes agreed by the relevant Patients' Forum or Patients' Forums and by the Commission."

Lord Harris of Haringey: This is a specific but important point which relates to the way in which the work programmes of the staff who will be employed by the commission and who will support patients forums will be drawn up. I understand that there will be a diaspora of staff working for the commission. Understandably they will have a presence in each primary care trust area and they will relate to the patients forums and other organisations in those areas.
	The purpose of the amendment is to ensure that those staff at least carry out a work programme that has been approved, agreed or developed in consultation with the patients forums with which they will be working directly. Otherwise there is a danger that their work programme will be entirely set by the main commission and centrally driven, which is clearly not the Government's intention, which is about giving the patients forums the sort of freedom and facility to influence the local health services that they desire.
	The amendment would ensure that those work programmes are developed in consultation with the line management arrangements, the national commission and the patients forums involving lay representatives at local level.
	No doubt my noble friend will tell us that that is the intention, but it would be helpful if it were contained in the Bill, because my experience shows that over time, as the original intention diminishes into the past and new arrangements are spelt out, the commission may well take a much more directive view than was initially the case. That might then lead to a situation in which patients forums were not being provided with the support of staff whose work programmes they had some control over.
	The amendment is saying not that all the work programmes of the staff will be directed by patients forums, but that they will be developed by the commission and the relevant patients' forums together.

Lord Hunt of Kings Heath: I am grateful to my noble friend. He has raised an important issue. While I do not wish to recommend accepting the amendment tonight, I reassure the Committee that we wish to see a strong partnership between the local forums and the national commission, not the dominance of the local forums by the national commission, which is the fear expressed by my noble friend.
	There is no doubt that a very important aspect of the commission's work is to support the work of forums. The support that commission staff give will clearly depend on the individual nature of each forum. For that reason, the forum-related work undertaken by the staff of the commission must be determined by a partnership arrangement between both parties.
	We have already said that we shall make regulations about the relationship of the forums with the commission on this point in particular. I do not think that it is appropriate to specify in the Bill the exact nature of the working relationship between the forums and the commission as inevitably it will be a movable feast. We recognise that in the early days of forums there will have to be a different degree of support from the commission as compared with the forums as mature organisations.
	I stress two key points. First, we must remember that the commission is the employer of the staff. In that capacity it will have overall responsibility for the work of the staff and be accountable for their performance. Secondly, an important part of the assessment of the staff's performance will be the views of patients forums. The commission's staff will have to show that they performed their role of supporting forums effectively as part of the way in which individual staff will be performance managed. That is one of the ways by which the commission will be accountable to local people; that is, through the work of local forums.
	The relationship between forums, staff and the commission is important. But the staff of the commission will also be working with many other bodies and on other issues. While the work of the commission staff will be determined to some extent by the support needs of forums, that will be only one factor that will enable it to set its work programme. It will also take account of other issues that are important to local people that it may get to hear about through OSCs, for example, or through its work with local community groups.
	I hope my noble friend will accept therefore that, while I do not go down the route of Amendment No. 141A, I accept that it will be essential to have a close partnership between the commission and local forums where it is quite clear what the role of the staff will be and that there is an appropriate performance management regime in place. A key element of that will be the way in which the commission staff support the local forums. That will be a considerable factor in the way in which the commission judges the performance of its staff.

Lord Harris of Haringey: I am grateful to my noble friend for indicating that he supports the direction of the amendment. I am also grateful for his clear commitment that staff of patients forums will be employed by the commission at national level and be subject to all the employment circumstances that follow from that. That is an important principle in terms of demonstrating the independence of the staff supporting patients forums from local health service bodies and agencies.
	However, I am not entirely satisfied that the responses given will in practice address the point. It seems to me that there could well be circumstances in which a local patients forum which, although to many independent bystanders, might appear to be doing an effective job, will be regarded by the commission as being a considerable "pain". Therefore a member of the staff of the commission, who will be performance managed on the basis of how well he or she supported the patients forum, will have the wonderful excuse that, because these people are complete maniacs to deal with, it is an impossible job and he cannot achieve anything. And the performance management regime may well recognise that.
	Despite the fact that some patients forums will be difficult, will not fit a national pattern and will not be doing the sorts of things that the commission may wish them to be doing but will be doing other things relevant to their local communities or the interests of the patients they are representing, we would like to see a circumstance in which they will still be able to influence the work programme that the staff are supporting. It is clear that the staff will be doing other things as well. But it would be helpful if some way could be found of reflecting on the face of the Bill or perhaps in the many sets of regulations promised at a later stage, the partnership described by my noble friend.

Lord Hunt of Kings Heath: I have already intimated that we shall be bringing in regulations to govern the relationship between forums and the commission. I shall be happy to give further consideration to the specific point my noble friend raised to see whether or not we should put more detail into the regulations to cover it. In general one has to rely on common sense. In most cases, the relationship between patients forums and the commission would be able to deal with the issues raised by my noble friend. I do not see any reason why we should not cope with that satisfactorily.

Lord Harris of Haringey: I am grateful for that further assurance from my noble friend. I hope that when considering the shape of regulations explicit reference to the nature of the partnership and the handling of staffing arrangements will be made. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ampthill: The Minister replied to Amendments Nos. 142 to 145 without my hearing the noble Lords who tabled them speak to them.

[Amendments Nos. 142 to 145 not moved.]
	Schedule 6 agreed to.
	Clause 20 [Abolition of Community Health Councils in England]:

Earl Howe: moved Amendment No. 146:
	Page 26, line 14, leave out subsections (1) to (3) and insert—
	"(1) The Secretary of State may by order provide for the abolition of Community Health Councils established for districts in England under section 20 of the 1977 Act and for the abolition of the Association of Community Health Councils for England and Wales ("ACHCEW") established under paragraph 5 of Schedule 7 to the 1977 Act.
	(2) Before making such an order, the Secretary of State shall consult with those bodies in subsection (3), and must be satisfied that there are in place replacement bodies able to meet the needs of patients and communities nationally and in all localities in England.
	(3) The bodies referred to in subsection (2) are—
	(a) overview and scrutiny committees or joint overview and scrutiny committees provided for in sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001 (c. 15),
	(b) Strategic Health Authorities,
	(c) Patients' Councils,
	(d) Patients' Forums,
	(e) Community Health Councils,
	(f) The Commission for Patient and Public Involvement in Health,
	(g) The Association of Community Health Councils for England and Wales, and
	(h) such other bodies as the Secretary of State shall deem appropriate."

Earl Howe: The amendment has a simple purpose: to ensure that the abolition of CHCs and ACHCEW is not effected before the new bodies are fully operational. It is in the interests of patients and the public that there should be so far as possible a seamless transition between CHCs and their successor bodies. CHCs should continue to perform their statutory functions until the new arrangements are fully up and running. In some areas of the country it is more than possible that that will not happen by the target date of 1st April next year. In that event, patients must not be left without a watchdog. The timing of abolition for CHCs should depend on consultation.
	Similar considerations apply to ACHCEW. As we all know, it plays a key role in consultation with government and with leading health professional and regulatory bodies such as the GMC, the RCN and the BMA. It runs high-profile monitoring campaigns such as Nationwide Casualty Watch, which highlights long waits for patients in A&E. It also produces a range of publications for lay representatives and patients and it provides training for staff as well as legal services and information. ACHCEW should be allowed to continue in being until the successor bodies have assumed responsibilities for all those functions. I beg to move.

Lord Clement-Jones: I support Amendment No. 146, for the cogent reasons given by the noble Earl, Lord Howe. The timing of the abolition of CHCs allied to the timing of the setting up of the new bodies is clearly crucial. On our calculation it could be anything up to nine months or a year before the new bodies come into effect. What will fill that gap? It should be the continuance of the old system until the new system is up and running. I should be interested to hear what scheme the Minister has in mind and how he intends to fill that gap.

Lord Hunt of Kings Heath: I agree that we need to ensure a smooth transfer from current arrangements to the new arrangements. It is our intention that CHCs will not be abolished until the commission and patients forums are in place and overview and scrutiny committees are carrying out their health service scrutiny functions. For that reason we have set up and are working closely with a transitional advisory committee, which is giving us great help.
	Once the commission is established we shall be taking its view about the readiness of the new system, and particularly that of patients forums to take over from CHCs. Between now and the abolition of CHCs we shall work closely with all those organisations to ensure no gaps are left in the system. CHCs will not be abolished until we are confident all their functions have been picked up in the new system: independent advocacy by independent complaints advocacy providers; scrutiny by OSCs; and monitoring of local services by patients forums. There will be a managed transition to all parts of the system. Until the end of the year the transitional board will work closely with officials in my department, acting as a resource for them and providing insight into the issues that will be important to stakeholders as the system changes.
	As regards consultation, I am very reluctant to prescribe with whom we should consult on the face of the Bill. However, I can say that arrangements to involve and consult stakeholders are in place. The department has a great deal of experience in consulting with a wide range of organisations. We shall certainly not let the system down in relation to patient/public involvement.

Earl Howe: Although the Minister has not been able to go quite as far as my amendments would require, I find his reply largely reassuring. I shall, of course, read his response carefully in Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 147 not moved.]
	Clause 20 agreed to.

Earl Howe: moved Amendment No. 148:
	After Clause 20, insert the following new clause—
	"REFERRAL OF CONSULTATION ARRANGEMENTS AND DISPUTED DECISIONS
	(1) In section 11(2) of the Health and Social Care Act 2001 (c. 15) (public involvement and consultation) for paragraph (a) there is substituted—
	"(a) the Secretary of State,
	(aa) Care Trusts,".
	(2) Before an establishment order for a Strategic Health Authority, an NHS trust, a Primary Care Trust or a Care Trust is made, varied or revoked, the Secretary of State shall consult those bodies in subsection (5) whose districts are wholly or partly within the area of operation of the relevant authority or trust.
	(3) Any Strategic Health Authority considering whether to exercise its powers under section 17A of the 1977 Act shall first consult the bodies provided for in subsection (5) whose districts are wholly or partly within the area of operation of the relevant Primary Care Trust.
	(4) The Secretary of State shall by regulations make provision—
	(a) concerning the application of section 11 of the Health and Social Care Act 2001 such that if in the view of any of the bodies in subsection (5) consultation arrangements are inadequate, the body in question shall refer the matter to him;
	(b) for the referral to Strategic Health Authorities of disputed decisions concerning the planning or operation of health services by bodies detailed in subsection (5);
	(c) for circumstances in which bodies detailed in subsection (5) shall refer decisions concerning the planning or operation of the health service to him including the circumstances in which referrals shall be made directly to him by Patients' Forums and Patients' Councils on the failure of overview and scrutiny committees to respond to a referral made to them under section 18(2)(m) of this Act;
	(d) placing a duty on the Secretary of State and those bodies receiving referrals to respond to them within a specified time limit and giving reasons for any decision taken in relation to the subject matter of the referral.
	(5) Those bodies referred to in subsections (2) to (4) are—
	(a) overview and scrutiny committees or joint overview and scrutiny committees provided for in sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001,
	(b) Patients' Councils,
	(c) Patients' Forums."

Earl Howe: This amendment takes us into an area that is of prime importance if the voice of patients is truly to be heard, and if that voice is to be a constructive instrument for change in the health service. The regulations governing community health councils grant a right to CHCs to be consulted on any proposals that would lead to a major change in the provision of healthcare in an area. They also enable CHCs to notify the Secretary of State when they are not satisfied that sufficient time has been allowed for consultation on proposals of that kind, or where they believe that a consultation has been inadequate.
	There are many examples of that sort of consultation. At present, if a health authority or PCT wishes to make a change in the way that services are provided to patients, the CHC is consulted. If, as occasionally happens, the proposals are controversial—for example, those relating to Kidderminster Hospital—local people need to be able to mount an appeal against such decisions, and, if need be, to refer them to the Secretary of State. That is what a CHC can do currently.
	Once CHCs have been abolished, I am very worried that there will be no equivalent mechanisms to ensure the same kind of consultation with, and by, the successor bodies on changes to local health services. There are several gaps in the Bill in this respect. We understand that overview and scrutiny committees (OSCs) will be able to make referrals to the Secretary of State on controversial decisions, or if they think that consultation has not been adequate. Well, that is positive; but there are no provisions to that effect in the Bill. We do not even have draft legislation to go on. Can the Minister say what will happen if an OSC chooses not to refer a matter of intense local concern and simply does nothing? In those circumstances, and as a longstop, I believe that there ought to be a way for patients forums to refer directly to the Secretary of State, or to their local strategic health authority.
	Again, at present, if there is a consultation exercise that falls short of what is correct—let us say, if insufficient information is given out, if facts and figures are misrepresented, or if key people have been left out of the loop altogether—CHCs have a duty to refer the matter to the Secretary of State. When CHCs disappear, the Health and Social Care Act 2001 does not provide any channel for the referral of failures to consult or of inadequate consultations. This means that those health bodies which decide not to consult, or which contrive to fix the result of consultations, will get off scot-free unless challenged in the courts. Again, OSCs have no rights of referral in this Bill. Patients forums will have neither the resources nor the legal power to engage in legal proceedings. So what remedy will there be? Apparently none.
	There is another kind of consultation absent from the Bill. At the moment, the Secretary of State must consult CHCs on reorganisations of health authorities, NHS trusts, and PCTs, as well as on changes to GP and pharmacy services. These are matters that can make a real difference to local communities. It is absolutely right that those communities should have a chance to say what they think. In Clause 1 of the Bill we have a provision that permits consultation on the establishment or variation of a strategic health authority. It seems to me that that does not go far enough. We should have a specific provision on the face of the Bill that requires consultation on all re-organisations, including the establishment of care trusts. But the same applies equally to proposed changes in specialist commission—intensive care, HIV, paediatric care and coronary care. If there are flaws in the plans put forward to re-organise this or that aspect of healthcare provision, and local people realise that, they should have a guaranteed route up the line to the Secretary of State.
	Consultation of this nature is not and should not be an optional extra. The whole point of any reform to the National Health Service is to improve services to patients. The best way to ensure that we have that right is to ask patients what they want. I suggest that that dialogue between government and the public is fundamental to good policy-making. It is also one way of balancing out the tendency of a state-run monopoly provider of healthcare to impose solutions from above on a one-size-fits-all basis.
	My amendment attempts to carry through to the Bill the current statutory obligations to consult at government and local level on major decisions affecting patients. I believe they are vital for the well-being of patients and the NHS. I beg to move.

Lord Clement-Jones: I rise to support strongly the noble Earl, Lord Howe, on Amendment No. 148. The omission of the right of referral for disputed decisions in respect of the new bodies is serious and significant. I hesitate to rub further salt in the Minister's wounds about South Birmingham CHC, but that was a classic example of the importance of the rights of CHCs as currently constituted.
	It is important for patients and their representatives to be able to dispute and to refer such disputes when there are arguments about the nature and structure of provision within the NHS. As I read it, there is nothing equivalent to that in the legislation. That would be deeply regrettable. It serves only to increase the mistrust of the provisions; that the aim is to make an easier life for NHS managers, Secretaries of State and Ministers in the Department of Health. However, that is not what we should be here to provide. We should be here to provide the possibility of robust public debate. That is what it is about. There should be the relevant and necessary powers to enable the bodies being set up under the Bill to engage in that. I look forward to hearing the Minister's comments.

Lord Filkin: I broadly agree with the objectives of what both noble Lords have argued. However, I suggest that they are already adequately covered, both in the Bill and in the regulations made under the Bill.
	Therefore, the new clause is largely unnecessary. It duplicates the consultation provisions which are already in place or that we intend to put in place. For example, there are already specific duties of consultation in respect of primary care trusts, NHS trusts and care trusts, the details of which are set out in regulations. Clause 1 of the Bill gives the Secretary of State powers to make regulations containing requirements as to consultation which must be complied with before he makes an order under Section 8 of the National Health Service Act 1977 relating to strategic health authorities. Section 11 of the Health and Social Care Act, as amended, will require strategic health authorities to consult on services for which they are responsible.
	My ministerial colleagues have made clear that there is to be a robust framework for referral by OSCs to the Secretary of State on matters of concern that are being consulted on and on the nature of the consultation to ensure that those democratically-elected representatives of local communities can represent the views of their local communities to the national level. We are considering how best to provide for that within the framework of Section 7 of the Health and Social Care Act.
	We are sympathetic to the need to carry out proper and effective consultation and to ensure that disputed decisions are properly dealt with by democratically elected representatives of local people. However, this new clause overcomplicates and clutters the Bill with, we suggest, unnecessary detail.
	We have made necessary provisions in the Bill and in the Health and Social Care Act—for example in Section 11—to ensure that the views, concerns and interests of patients and the public at large are fed into local decisions about the planning and development of the NHS. The complex set of arrangements set out in the new clause over-complicates what is already provided for in the Bill.
	I turn to the specific matters. For example, with regard to patients forums, Clause 17, in relation to annual reports, already gives very clear powers for patients forums to carry their representations to the Secretary of State. In previous discussion we dealt with the right of OSCs to be consulted on any significant changes affecting the health service in the area. The reverse is the case with regard to the view that this is intended to make life easier for the Secretary of State or for health service professions. It is a belief that by articulating patient and public views one provides a more effective challenge to improve the service—one actually ensures that services are more likely to be changed. Therefore, the whole Bill is focused on strengthening public voices as one of the means of reforming the health service as well as being a right in its own respect. I therefore urge the noble Earl to withdraw the amendment.

Earl Howe: I found that reply very interesting. It revealed a number of points that I had not woken up to. I shall go away and study carefully what the Minister said. In essence, he is saying that this amendment is completely unnecessary because all the angles are already covered. I hope that that is right. I shall endeavour to satisfy myself that what the Minister said—I am sure in all good faith—is correct.
	Perhaps I may ask the Minister, in so far as there are regulations still to come, when they are likely to be forthcoming. Does he have any idea when we are likely to see those regulations laid? For example, will it be in the next couple of months or a little later?

Lord Filkin: I cannot give a specific answer here and now, but I will give an indication of that matter at the next stage of the Bill.

Earl Howe: I am most grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 149 not moved.]

Lord Clement-Jones: moved Amendment No. 150:
	Before Clause 21, insert the following new clause—
	"PRISONS
	The Secretary of State shall by regulations determine that responsibility for health services in prisons shall be assumed by the National Health Service, and the Prison Act 1952 (c. 52) and the Prison Rules 1999 (S.I. 1999/728) shall be amended accordingly."

Lord Clement-Jones: We come on to pastures new with Clause 21. It deals with the joint working of the NHS and the prison health service.
	Gross failings in the prison health service have been identified by a number of Members both of the other place and here, but notably by my noble friend Lord Avebury. He has discovered that, despite promises by Ministers to the Health Select Committee in the year 2000, there are still some 500 prisoners unable to access the secure psychiatric units that are needed. Yet these prisoners are currently in-patients on prison hospital wards. That is not something dreamt up by some estimate. It has been confirmed by Her Majesty's inspector of prisons. Indeed, it could actually be a gross underestimate.
	The problem does not just reside in the area of mental health. This time last year in its report Prison Medicine: A Crisis Waiting to Break, the BMA had strong words to say about prison governors interfering in the clinical judgment of doctors by prohibiting the use of the most cost-effective medications in order to divert more resources into gaol security.
	The then Chief Inspector of Prisons, Sir David Ramsbotham, said that the BMA was confirming horrendous examples of defective prison healthcare. I wonder what has really changed at all since that report. Indeed, I wonder what has changed at my local prison—Brixton prison—since 1999 when the governor threatened to turn away prisoners with health problems. He said that delivery of healthcare fell far short of the most basic acceptable standards. We need the continuity that complete merger between the prison health service and the health service could provide.
	All except 24 of about 70,000 prisoners currently inside will come out. At present, we risk releasing them in a worse state of health than when they went in. According to the Office for National Statistics in a report published in 1998, 70 per cent of them are suffering from some form of personality disorder. In his 1996 report, Patient or Prisoner, Sir David Ramsbotham said that it was high time that the NHS assumed responsibility for healthcare. Regrettably, the 1999 Prison Service and NHS Executive joint report on the future organisation of prison health care put its trust, as does the Bill, in partnership arrangements.
	Until the needs of prisoners are included in NHS estimates, provision will not be properly resourced. Prisons should be regarded as outstations of nominated NHS providers, which should be contracted to provide both services and staff. All informed commentators now agree that joint arrangements between the prison health service and the NHS are inadequate. Prison managers would welcome the assumption of health responsibility by the NHS.
	We on these Benches keep suggesting new avenues that in many cases take two years for the Government to adopt. I remind the Minister that integration between health and social care was firmly resisted during the passage of the Care Standards Act 2000 but finally came in the shape of care trusts under the Health and Social Care Act 2001. In 1999, during the passage of the Health Act 1999, we suggested that CHI should cover both the NHS and independent hospitals. That was finally accepted by the Secretary of State in response to the Kennedy report early this year.
	Will our suggestion about complete integration of the prison health service and the NHS suffer a similar fate? Will we have to wait another year before the Government decide that such integration is sensible? I suggest that the Minister brings forward the blinding light and accepts that that may be a sensible way forward that would be of great benefit to those who are currently in prison. I beg to move.

Earl Howe: Like the noble Lord, Lord Clement-Jones, I welcome the opportunity to debate the Government's proposals for prison healthcare. I shall speak to Amendments Nos. 151, 153, 155, 157 and 158. Like the noble Lord, I have profound misgivings about the measures contained in the Bill and do not believe that they are anything like adequate to address the serious crisis that has overtaken prison doctors and their patients in the prison system.
	Healthcare in prisons has been in a dire state for more than a decade. When he was chief inspector in 1991, Judge Stephen Tumim made strong criticisms of medical care in Wormwood Scrubs. Similar but more sweeping concern was repeatedly expressed by his successor, Sir David Ramsbotham, in connection with the Scrubs and many other prisons.
	The prison environment presents perhaps the most extreme combination of adverse circumstances for health outcomes that one can dream up. As a population, prisoners are disproportionately afflicted with a range of serious health problems, the most prevalent and well recognised of which are mental illness, sexually transmitted diseases including HIV, and drug addiction.
	In addition, the general physical health of prisoners is often poor. A sizeable proportion of offenders, especially young offenders, have experienced homelessness and have lived on the streets. Many are poorly educated. To add to that, living conditions in prison, which to say the least are not conducive to physical or mental health at the best of times, let alone when overcrowding is as bad as it is now, can often exaggerate a pre-existing condition.
	In combination with the health problems of prisoners is a severe lack of healthcare resources in prison. Budgetary restrictions prevent doctors from prescribing the most effective medicines. There is a lack of access to psychiatric nurses, occupational health workers, substance abuse counsellors and clinical psychologists. If a doctor applies to transfer a prisoner to hospital for specialist treatment, the authorities will often be reluctant to pay the costs, even when the lack of specialist care could have serious results. Nowhere is that more true than with prisoners suffering from a serious psychiatric disorder. Even when a transfer to hospital is agreed, there are often delays, during which the prisoner is at increased risk of self-harm or suicide.
	The scale of mental health problems in prison is great. In 1996, a study showed that over 60 per cent of unconvicted male prisoners held on remand suffered from mental disorder. Some were in need of immediate treatment but were not receiving it. If ever we find ourselves trying to identify the causes of crime, in order to be tough on them, I shall defy anyone to come up with a better example than untreated mental illness or untreated drug dependency in prisons. The failure to deal properly with such conditions has a direct knock-on effect on the levels of criminal activity and creates little more than a revolving door in and out of prison for many offenders.
	Against that background, it is no wonder that morale among prison doctors is generally at a low ebb. There is an acute shortage of prison GPs. Experienced prison doctors are leaving, and new doctors are deterred from entering. It is not just the frustration of working with too few resources that deters doctors, although that is a major part of the problem. The problem is even more deep-rooted than that. The noble Lord, Lord Clement-Jones, alluded to that. Doctors in prison find that their clinical judgment is second-guessed or interfered with by administrators, including prison governors. The BMA has reported a large increase in the number of inquiries and complaints from prison doctors who describe such situations.
	Doctors in prisons have an ethical duty to provide standards of care in accordance with clinical need and on a par with those available to society at large. It is difficult for them to compromise those standards, even though most doctors recognise that there will inevitably be resource limitations in prisons that restrict their autonomy in one way or another. It is unacceptable for a professional clinical judgment to be overruled by management decisions that discount medical opinion and ignore the best interests of the patient.
	Although much good can be done by the injection of further resources, as the Bill envisages, it is idle to suppose that doctors will be able to make headway in the existing crisis unless they are given unfettered clinical discretion to treat patients according to need and in the best possible way. I have grave doubts that a so-called partnership between the NHS and the Prison Service will be anything more than a cosmetic device that will leave prisoners almost as ill served as they are now. Joint working goes on at the moment and makes little impression.
	In the final analysis, prison administrators are not doctors and do not understand medicine. Dr P J Keavney, chairman of the BMA Civil Service Committee, said:
	"The Prison Service itself does not help matters by its insistence on an agenda for its governors which concentrates on process instead of clinical outcomes. The lack of understanding of clinical governance is a bar to the delivery of adequate healthcare within our penal institutions . . . In the end, a system focusing simply on 'process' to satisfy short-term political . . . concerns will fail to resolve the clinical needs of patients".
	I fear that that is the answer to Ministers who argue—admittedly, with some logic but without a sense of the realities—that prison governors must retain a sense of ownership of the health and well-being of the prisoners in their care and that that can be preserved only if governors retain direct accountability for prison healthcare.
	However good governors may be in other ways, there is too much evidence that the sense of ownership that currently exists counts for nothing so far as concerns prison healthcare. The BMA cites one instance of a prison governor expressing indifference to the likelihood of a prisoner dying as a result of failure to transfer him to hospital. I do not say that that is typical but it is symptomatic of the wider problem.
	It was again Sir David Ramsbotham who argued in an important paper published some six years ago for the full integration of prison healthcare services with the NHS. I agree with him that nothing short of a complete merger of the NHS with the prison medical service is capable of putting these matters right.
	Yes, I admit that that would present difficulties. It would involve drawing up protocols that preserved the authority of governors in non-clinical matters and that bound doctors to observe and take account of the need to preserve security and prison discipline. However, that kind of protocol is not an impossibility; it is attainable. Simultaneously, a comprehensive health needs analysis of the Prison Service should be commissioned. I urge the Government to put such an analysis in train, whether or not this part of the Bill is amended.
	I hope that the Minister will be able to respond constructively to the very important concerns that I and the noble Lord, Lord Clement-Jones, have raised.

Baroness Masham of Ilton: At this time, and for several weeks now, I have had down for Written Answer a Question concerning the healthcare unit at Wandsworth Prison. It is in need of a new unit. Noble Lords would have to see it to believe how diabolical it is.
	The unit is totally inadequate. Mentally ill and sometimes very dangerous prisoners are mixed with physically ill patients. The situation is quite unsatisfactory. A few weeks ago I visited Wandsworth Prison and met a young man with two broken legs. He had been assaulted by one of the prisoners who is mentally ill. I told the young man that I would tell noble Lords about his case.
	At the present time there is a 60 per cent shortage of nurses at Wandsworth. That is due partly to the great expense of living in London. However, I was impressed with the work being done to tackle drug abuse, which has been helped by the drugs strategy. But they have no facilities to help those with severe problems with alcohol, and we have been told that the strategy will be out in two years' time. I hope that, in that time, something will be done to alleviate the very severe problems within the Prison Service. At the moment there is a vacuum. Alcohol presents just as much of a problem as drug abuse with regard to violence in the community and wife beating. Many alcoholics land up in prison.
	Many prisoners are sent off to other prisons quickly and often their medical notes do not accompany them. A much smoother facility should be provided for this. Out of sight is out of mind, but this is a serious problem and we should do more to help prisoners who have problems.
	I was serving on the Yorkshire Regional Health Authority when many of our mental hospitals closed down. One had to ask what would happen. I knew then that many of those patients would turn up in the prison system. That has happened. We must do something about this. Much better links should be established within the community because prisoners are let out into the community without links, without notes and without access to a GP. Many do not have GPs because they live such chaotic lives.
	I could discuss this at length. We must look at this matter very seriously. There is a great need and many people currently in our prisons have serious problems of illness.

Baroness Finlay of Llandaff: I support the amendments. The proposals in the Bill are to be welcomed and will address some of the problems in the Prison Service. However, I should like to reiterate the problems of the people working in the service and the lack of a career structure. It is not attracting high calibre doctors because there is not an adequate career structure within the Prison Service. Prison medicine per se is in its infancy and there is no developing research base—which there should be—to look at the best ways of improving the healthcare of prisoners.
	I was involved in carrying out a study among young male remand prisoners. It was very difficult to carry out the study in the prison, although we did get some co-operation from the prison governor and from some prison officers. We found an alarming level of unresolved grief among the young lads on remand. They had had horrific losses and bereavements and had never had any help or support to resolve them. As a result, they have ended up, through various routes, inside and on remand. Some of these young prisoners reported that they were frightened of being in the sick bay. They preferred to go back to their cells if they were ill because they were frightened of the other prisoners.
	The problem for prison doctors is that they do not have the support infrastructure. Care assistants are recruited partly from those with a nursing background, but many are recruited from the ranks of the prison officers themselves, who come through with a slightly different approach and different mentality.
	I can understand the fear that doctors might possibly jeopardise security but it is important to remember that doctors, through their duties outlined by the GMC, particularly in its document on confidentiality, have a duty to the individual. But they also have a duty to society, and they must weigh up the balance between the duty to the individual and the duty to society in taking clinically-related decisions.
	If the Prison Medical Service were to be properly incorporated into, and viewed as a part of, the NHS structure—with an adequate career structure—it might stand a chance of recruiting higher calibre staff and of attracting people who want to undertake research into the area and look for ways of improving some of the terrible outcomes that we currently see.

Lord Filkin: A number of noble Lords have spoken powerfully about the importance of healthcare in prisons and the severity of the challenge facing the health service, however it is organised, in the Prison Service.
	The noble Earl, Lord Howe, drew attention to the constellation of drugs, sexually transmitted diseases, basic poor health and mental health problems which forms a very serious and dire cocktail of pathology. It causes considerable problems to many people in prisons and presents a great challenge to the public service in its attempts to improve services.
	The argument put forward by the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, is, in essence, that there is only one solution—that is, the immediate and forthwith transference of all prison health functions to the NHS. While the Government's mind is not totally closed to that, we believe—certainly at this point in time—that as an immediate action it is too simple and would not be effective.
	As the noble Earl, Lord Howe, recognised, however health services are funded and accountable, in a prison context there has to be a strong partnership arrangement between prison management and health service provision. It would be impossible otherwise to function effectively. That is why the Bill as it stands puts an enormous pressure and focus on making partnership arrangements work better in the health service in prisons in the future.
	For example, as part of the partnership arrangements that we have established, all prisons have completed joint health needs assessments with the active involvement of their local NHS partners. Those assessments are forming the basis of joint prison health improvement programmes. They will be completed by the autumn and will set out local plans for joint work to improve services for prisons. This represents a far closer and more systematic approach to partnership working between prisons and their NHS partners than has ever existed before. It is clear also that there is a significant improvement in the resources going into prison healthcare. The Government hope that will go further.
	Clause 19 is aimed at opening up new opportunities for further partnership working between the NHS and the Prison Service to improve health services for prisoners. Amendments Nos. 151 to 153, 155 and 157 to 158 would turn that partnership flexibility into something of a one-way street. Amendment No. 150 goes further, by attempting to bring to an end existing partnership arrangements and make the NHS solely responsible for the healthcare of prisoners—a position advocated by the noble Lord, Lord Clement-Jones, on Second Reading and this evening.
	Amendment No. 151 fundamentally alters the scope and purpose of the duty of co-operation. As it stands, that duty promotes joint working between NHS bodies and the Prison Service, with a view to improving the way that both exercise their functions in relation to securing and maintaining the health of prisoners. The amendment removes any reference to improvement and envisages only the transfer of Prison Service functions to the NHS.
	Amendments Nos. 152 and 153, 155, 157 and 158 would effectively prohibit delegation of specified NHS functions to the Prison Service but would retain the provision for the Prison Service to delegate its health-related functions to the NHS. I will be open with the Committee about the way we see those new flexibilities working. We envisage that the greatest local demand for use will be for delegation of health-related Prison Service functions to NHS bodies—for example, in the area of mental health. But those are partnership provisions and we felt it right that they should be even-handed in allowing delegation in both directions where that would improve the way that services are delivered.
	The emphasis in the clause is on responding to local proposals developed by the Prison Service and the NHS in partnership. We do not wish to rule out the potential for sound and beneficial proposals that may involve an element of delegation from the NHS to the Prison Service. The amendments would restrict the options available to local services for improving healthcare for prisoners, so we oppose them.
	Amendment No. 153 deletes the lines which specify that the new flexibilities for delegation and budget pooling can be used only if they are likely to lead to an improvement in the way that those functions are exercised in relation to securing and maintaining the health of prisoners. I cannot see how removing that qualification could be thought desirable—notwithstanding the other amendments suggested by Opposition Members.
	A fundamental principle of the duty of co-operation in Clause 21(1) and the delegation of flexibilities in subsections (2) and (4) is that they are about improving the way that functions are exercised—which, broadly speaking, should have the effect of improving services. That principle is important because it makes clear that the main purpose of the provisions and of the arrangements made under them is to improve services for patients.
	Amendment No. 150 goes one step further in its intention of passing full responsibility for the healthcare of prisoners to the NHS. I appreciate the reasons for that suggestion. We considered that option carefully at the time of the review that led to the publication of The Future Organisation of Prison Health Care in 1999. That review left open the option of a transfer at some point in the future but concluded that for the time being the best way to improve prison health services was through a close partnership between the Prison Service and the NHS. There are a number of reasons, but principally we believe that neither the NHS nor the Prison Service can provide healthcare for prisoners without the active co-operation of the other.
	Healthcare activity in a prison—as the noble Earl recognised—is inextricably linked with other aspects of the establishment's operation. Issues of security, discipline and the wider prison regime all need to be managed alongside the delivery of the effective and improved health services that are the Government's aim. The prison governor and the Prison Service more widely must retain a stake in health services. At present, the formal partnership that we have established between the Prison Service and the NHS to improve health services for prisoners represents the best way forward.
	Perhaps I should mention at this point, as the noble Baroness, Lady Masham, made specific reference to Wandsworth, that my step-daughter has recently been appointed deputy governor there. Therefore, I have a strong personal interest in these issues.
	We have not ruled out such a transfer in the future—although, because health issues and wider aspects of the prison regime are so closely linked, such an arrangement would need to incorporate a strong partnership element to stand any chance of success.
	The policy document, The Future Organisation of Prison Health Care recommended that the partnership arrangements that we have put in place should be kept under active review, and we shall do just that. However, we believe that these arrangements should first be given an opportunity to demonstrate what they can achieve. I therefore oppose Amendment No. 150.
	In opposing the amendments tabled by noble Lords opposite, I nevertheless share their aims of ensuring that the NHS has a greater stake in the delivery of health services for prisoners, and that we secure significant improvement in the quality of those services, as has been so strongly advocated in the debate. That we are agreed on those aims is in itself valuable. We differ only on the matter of how they are best pursued at this time.
	I believe that the arrangements that we adopt for the prison health services, both now and in the future, must include a strong element of partnership. Perhaps I may take this opportunity to provide a further illustration of the way in which the partnership between the NHS and the Prison Service is helping to improve the standard of care that prisoners receive.
	The NHS and the Prison Service are working together to help to deliver the Government's commitment to supporting doctors and protecting patients. I am pleased to announce that the National Clinical Assessment Authority will, from this month, be providing the full range of its advice and assessment services to the Prison Service for those doctors the service employs.
	The NCAA is at the heart of the Government's co-ordinated approach to improving the quality of healthcare and ensuring better protection for patients and better support for doctors. As the noble Baroness, Lady Finlay, rightly remarked, such an approach is necessary if patients are to receive the quality of care that they have a right to expect in prison. It provides a central point of contact where concerns about a doctor's performance arise and will give extra support to doctors where necessary. The NCAA currently provides advice and makes recommendations to NHS hospitals and health authorities so that they can take appropriate action to check poor performance, to ensure that doctors are practising safely and to discipline or suspend doctors whose practice gives rise to serious concerns much more quickly.
	As part of the formal partnership that we have forged between the Prison Service and the NHS, the benefits of these important services will be brought to bear on health services in prisons. This is a concrete example of the way in which we believe that partnership working is fundamental to improving healthcare in prisons.
	In conclusion, the provisions in the clause will enable closer partnership working and emphasise the shared responsibilities that both the NHS and the Prison Service have in this crucial area. They strengthen the foundations that we are laying for real, sustained improvements in health services for prisoners, and widen rather than curtail the options for longer term development of these services.

Baroness Masham of Ilton: Before the Minister sits down, perhaps I may say how delighted I am to hear that his step-daughter is assistant governor at Wandsworth. I was very impressed with the staff we met there. I recommend that the Minister should go with her to see the healthcare centre for himself. It would make life so much easier for the staff and the prisoners if the prison had a new unit. It is having a new kitchen, but the health facilities should have come first.

Lord Filkin: I am happy to give that commitment in my private capacity.

Lord Clement-Jones: I thank all those who have taken part in this important and interesting debate. In particular, I thank the Minister for his carefully considered reply, the noble Earl, Lord Howe, for his powerful speech and the noble Baronesses, Lady Masham and Lady Finlay, for their firsthand knowledge in this area, which has strongly informed the debate.
	I am interested in the Minister's careful consideration of this matter. He mentioned that the option of complete transfer was considered in the document published in 1999. But the interesting point is that both of the previous HM chief inspectors came to the conclusion that transfer to the NHS was the best option. I am most interested in the fact that the Prison Service and the Department of Health have not agreed with that conclusion. Both Sir David Ramsbotham and Sir Stephen Tumim made it quite clear that, until that transfer took place, the health service in prisons would not be adequate.
	Clearly, one must welcome the Minister's commitment to more resources, to the health improvement programmes in prisons, and to a number of other developments, such as the involvement of the National Clinical Assessment Authority. Of course, all those are very positive developments. However, this boils down to issues such as recruitment, clinical governance, and control. If we are not careful, and if health service provision in prisons continues to be a Prison Service responsibility, this will be a grave disincentive for the provision of quality medicine in prisons. That is my main worry. If this provision were brought into the mainstream, the quality might more easily be raised.
	I suspect—although I do not know—that the reason for not giving the health service rather more responsibility in this area is to do with organisational tact. I thought it was slightly bizarre that this matter was seen as a two-way journey, as opposed to a single journey, under Clause 21. There are few circumstances in which community medicine would be provided in a prison. Although one can always be creative about these matters, I can see few people wishing to have their health services delivered in a prison. Perhaps that is just my misinterpretation of the Minister's comments.
	It will become quite inevitable that we shall need a much greater transfer of responsibility to the health service. Of course that must take place within the discipline provided by the prison; that goes without saying. One would not hand over a prisoner to a general practitioner or an acute NHS hospital, lock, stock and barrel, just by transferring responsibility for their medical and health needs. That certainly does not follow from the integration that I am proposing.
	The hour is late. This has been an extremely interesting debate. It is rare for us to have this kind of debate, because it crosses departments. None the less, it is extremely important that we keep worrying at this issue, because it is desperately important that we improve the healthcare in our prisons, as we have heard tonight. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 21 [Joint working with the prison service]:
	[Amendments Nos. 151 to 153 not moved.]

Baroness Noakes: moved Amendment No. 154:
	Page 27, line 24, leave out paragraph (a).

Baroness Noakes: I rise to move Amendment No. 154, and will also speak to Amendment No. 156. Amendment No. 154 deletes paragraph (a) of subsection (3) of Clause 21, and Amendment No. 156 is consequential in respect of paragraph (d). Paragraph (a) allows for arrangements to be prescribed for a fund to be set up. Both the NHS and the Prison Service can make contributions to such a fund, and the fund can pay the expenditure of the NHS and the Prison Service. That might seem straightforward, but I believe that it raises some important issues about accountability.
	I turned to the Explanatory Notes to find out what these arrangements were all about. Paragraph 124 states that subsection (3)(a)
	"enables the creation of pooled budgets".
	That is nonsense. A budget is not a tangible thing that needs to be created by statute. It is a simple construct involving accountants bringing together plans of how money is to be spent, and, in a situation such as this, of how the two parties would share the burden of the expenditure.
	Rather more worryingly, the Explanatory Notes go on to say:
	"The resources contributed by each body will lose their identity as health or prison service money".
	That is the heart of the problem. A fund seems to have the potential to put NHS money beyond public scrutiny. I have a number of questions for the Minister on that. If money is not health or Prison Service money, what is it? Who is accountable for it? Who will physically manage the fund, including operating controls over expenditure? Will accounts be required for the funds? If so, who will draw them up? Who will audit the funds? Will it be the C&AG via the Prison Service or the Audit Commission via the NHS? Do either or both of those have access to money placed in such funds? What will happen if there is money in the fund at the end of the financial year? Does it escape the normal rules of annuality? If not, which of the NHS and the Prison Service accounts for it?
	If those questions cannot be answered satisfactorily, the Committee might well conclude that the arrangement funds are dangerously irresponsible in terms of financial accountability. I beg to move.

Lord Filkin: Amendments Nos. 154 and 156 would remove the provisions for the establishment of pooled budgets between the Prison Service and NHS bodies. The noble Baroness has said why she thinks that would be appropriate. The amendments would undermine the fundamental aim of the clause, which is to promote improved opportunities for partnership working between the NHS and the Prison Service.
	The provision for pooling of budgets allows for simplified and significantly more joined-up commissioning of health services for prisoners. It is an important aspect of the clause and a valuable tool for delivering the objectives about which I have spoken.
	The point can best be made by illustrating how the partnership is working at the moment and how the pooling of resources can and does help. At present, 18 prisons in England are working with local NHS partners to develop new NHS-funded mental health teams to work in prisons. A further 25 such teams will be established during 2002-03 and a further wave by 2004.
	The new NHS mental health teams are beginning to work in those prisons alongside existing staff employed by or contracted to the Prison Service to provide better care to inmates with serious mental health problems. The Bill will allow local services to put in place much closer partnership arrangements to get the best from the health services provided by the prison and its local NHS partners.
	For example, in agreement with the prison, the local PCT could take responsibility for commissioning a single package of mental healthcare for prisoners. The Prison Service could delegate to the PCT the task of securing mental health services for inmates in that prison. The PCT could then commission services using a pooled budget comprising Prison Service funding currently spent on providing care for mentally ill prisoners and the resource the PCT is investing to develop the new NHS "in-reach" mental health teams.
	Such arrangements could help to deliver a single, locally agreed and jointly owned package of care that was far better integrated and better value for money because of the PCT's healthcare commissioning expertise and leverage. It goes beyond what could be achieved through a system of contracts and payments between the individual agencies concerned.
	The noble Baroness, Lady Noakes, raised some important but—and I do not wish to denigrate them—essentially technical points about how accountability chains and audit responsibilities will be handled. Under existing Section 31 provisions, each partnership needs to have a written agreement setting down the key framework issues for the partners to refer to. That includes the aims and outcomes of the partnership, the resources, the way in which the partnership will be managed, the eligibility criteria and assessment processes that are agreed and how disputes will be managed. A key feature will be the way in which the partnership is monitored, and that will be determined locally. We envisage that similar arrangements will apply to the new provisions.
	Although this is no more than speculation—and we shall have further opportunity for clarification if necessary—it seems to me that there must be analogies between the outsourcing arrangements which I described made by prisons and PCTs. Although a prison may give its budget to a PCT, the prison will still be ultimately accountable for the effective use of those funds. Similarly, the PCT may be accountable for how it spends both its funds and the budget delegated to it by the Prison Service.
	Those are important points and—to put the mind of the noble Baroness, Lady Noakes, at rest—I shall ensure beyond any doubt that there is no uncertainty or ambiguity about them. The fundamental point, however, is that we believe that such pooled budget arrangements have the potential to make significant improvements in the quality of healthcare in prisons. We therefore believe that they are an important part of the Bill.

Baroness Noakes: I thank the Minister for that reply. However, nothing he has said has explained why a pooled fund is necessary to achieve the results he has outlined; those results could be achieved in various ways. I asked some specific questions but I did not receive specific answers. However, in view of the lateness of the hour, I ask the Minister to reflect on the questions and to write to me so that we can resume our conversation at a later stage if necessary. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 155 to 158 not moved.]
	Clause 21 agreed to.
	[Amendment No. 159 not moved.]
	Clause 23 [The Council for the Regulation of Health Care Professionals]:

Baroness Northover: moved Amendment No. 159A:
	Page 29, line 17, leave out subsection (1) and insert—
	"(1) The bodies referred to in subsection (3) shall in each year submit a report to any joint select committee appointed by the House of Commons and House of Lords to perform the functions prescribed in this Part ("health joint select committee")."

Baroness Northover: In moving Amendment No. 159A, I shall speak to Amendments Nos. 159B, 164A, 164B and 165A to F. Although they appear in a later group, I should also like to speak now to Amendments Nos. 167 to 169 because they are consequential on this group.
	The amendments seek to replace the proposed council with a health Joint Select Committee. The Committee on Delegated Powers has advised that limits should be placed on the original powers in the Bill and—as the Minister will shortly propose, which we welcome—that new rules should be the subject of an affirmative resolution by both Houses. We feel, however, that that will leave much that is simply not right about the proposal for an overarching council across the healthcare professions.
	Let us return to first principles: what are the Government trying to do, and what should they be doing? Let us hope that their intention is to make the various health professions more accountable and more transparent and to ensure that there is greater co-ordination between those professions. If those are their aims, we fully share them.
	In the report on the Bristol Royal Infirmary inquiry, Professor Kennedy recommended the creation of a,
	"Council for the regulation of Healthcare professionals",
	as an "overarching organisation" responsible for bringing together the various health regulatory bodies.
	The functions which the Kennedy report envisaged such a council performing included ensuring that there is an integrated and co-ordinated approach between the various bodies for setting standards; monitoring performance, inspection and validation; acting as a source of guidance and good practice; and promoting common curricula and shared learning across the professions. The Kennedy report further proposed that such a council should have a statutory basis, should report directly to the Department of Health and to Parliament and should have a broadly based membership including representatives of the health professions, the NHS and the general public.
	We welcome the proposal that there should be co-ordination across the health professions in the way Kennedy recommends. But what about accountability and transparency? We have a serious problem with the Government's proposals. We are in danger of setting up another quango to second guess what the regulatory bodies are doing without the depth of knowledge and experience that they have. We are in serious danger of bogging down the council in looking at endless complaints against the professions by jaundiced patients even if the council then rules the complaints not worthy of further consideration.
	How can we make things accountable and transparent? The medical profession became professionalised in the 19th century. Self-regulation was part of that. Nursing and the other health professions followed. There are strengths and weaknesses in such independent self-regulation. We have to preserve the strengths and tackle the weaknesses. Accountability and transparency are areas of potential weakness.
	We propose that those bodies that regulate the health professions should be accountable directly to Parliament. The health bodies should report each year to a Joint Select Committee, appointed by the House of Commons and the House of Lords. They should report in public and that is where they should answer and be scrutinised. The Minister may say that the Government have no power to request the establishment of such a committee. Indeed, when Frank Field in another place made a similar suggestion he was not even able to table such an amendment. The Government, or others could introduce proposals for just such a committee, and the issue could be debated in both Houses which could decide to set up a Joint Select Committee.
	This proposal deserves careful and considered scrutiny, not dismissal on some empty pretext. There is already a precedent in the Ecclesiastical Committee which has equal Members of both Houses of Parliament and which has existed since 1919. The proposal is commanding attention. I note that Sir Denis Pereira Gray, writing on behalf of the Academy of Medical Royal Colleges, welcomed the proposal, supporting the notion that both the GMC and the Post-Graduate Medical Education Standards Board should report to Parliament directly and be subject to open parliamentary scrutiny and recommending a new parliamentary committee to achieve this. He argues that doctors want true, open accountability to Parliament, which in itself is quite a change.
	The BMA is also broadly supportive of the proposal of a Select Committee of both Houses to whom the regulatory bodies would be accountable. Meanwhile the King's Fund comments that there is a lack of thoughtfulness in the Government's proposed accountability arrangements for the council. The suggestion that professional regulators should be accountable to the new council, and through it to Parliament, raises more questions than it answers. The King's Fund describes this as an "unsatisfactory fudge" and argues that the lack of clarity risks further alienation of professionals who already feel disengaged from the debate and are suspicious of unspecified intentions. If the Government want professionalism to drive quality healthcare they need to attend to their relationship with those professionals. The King's Fund, as the Minister knows very well, cannot be considered to carry a torch for the professions. The warnings should be heeded.
	We welcome the idea of co-ordinating professions and making them more transparent and accountable. We differ from the Government in the route that we would take. We would make the professions truly accountable directly to Parliament and not through yet another quango which, in effect, largely answers to government. I beg to move.

Baroness Carnegy of Lour: This part of the Bill applies to the whole of the United Kingdom, including Scotland, and I am pricking up my ears. Of all the groups of amendments in the Bill, those which confirm the setting up of this over-arching body are the ones that the Government could and should abandon.
	My understanding of a profession is that it is defined by the fact that it regulates itself; it is not regulated by anybody else. The Government are now intending to regulate the regulatory bodies. The Minister shakes his head, but one only has to look at the amendment to see the power of this over-arching body. It is extremely dangerous.
	I hope that the Minister will find time to read the first Reith lecture, which the noble Baroness, Lady O'Neill, gave, and indeed the second one also. The first was all about the dangers of over-regulation and Byzantine arrangements for answerability, the over-regulation of professionals and the lack of trust in them. The series is about trust and the noble Baroness made some important points that are directly relevant to the Bill. The noble Lord, Lord Hunt, should think very hard about this. It is a dangerous arrangement.

Baroness Finlay of Llandaff: I rise to support Amendment No. 159A and speak also to the amendments which stand in my name.
	In relation to the proposal for a Select Committee, although it may be repetitious I must reiterate the need for transparency, independence from any kind of political pressure on the regulatory bodies and direct accountability to Parliament. In his excellent report on the tragic cases in Bristol, Kennedy highlighted the need for liaison between the different professional regulatory bodies. That is different from the way the proposal stands in the Bill at the moment.
	In a helpful answer to me earlier in response to Amendment No. 114A, the Minister made clear that it was not in the framework of this Committee to call for the establishment of a Select Committee. Will it be possible to have a separate debate outside this Committee, in the House, to establish whether such a Select Committee could be set up
	I agree with the Government's intentions in subsection (2). They are all general principles required to ensure teamwork functions at the highest possible level. Such teamwork functions must not be the lowest common denominator and there must be equity in decision making, discipline and conduct where needed. However, I seek reassurance from the Government that the healthcare professions will not be forced together under the proposed council and the fundamentally different areas of knowledge, skills and competency are recognised as crucial points of interplay of all those within a clinical team.
	There is a need for independence of the individual professions. That is how innovation occurs. Clear examples have been with revalidation where the nurses have led on continuous professional development and now the General Medical Council is leading on revalidation.
	Amendment No. 165 is compatible with Amendments Nos. 165YA and 165ZA which stand in my name. I speak to them as a doctor registered with the General Medical Council and as president of the Chartered Society of Physiotherapy. Let me explain why the regulatory bodies must remain directly accountable to Parliament. This regulation is a reserve power under devolution. NHS services are evolving differently in different parts of the UK and the demands on the professions may well vary in the four different countries of the United Kingdom.
	It is noteworthy that concern over the establishment of such a council has come from all of the regulators, including the new Nursing and Midwifery Council and the Health Professions Council. This concern is not from an old guard, nor is it reactionary. It is from the chairman of the new body. The GMC has proposed and is pursuing radical reforms to introduce revalidation for doctors, to have a smaller and more effective council, dropping from the current 104 to 35 members and to increase lay membership from 25 to 40 per cent. It also proposes radically to reform fitness-to-practice procedures to bring together performance conduct and health issues which are all part of fitness to practice. That will increase transparency and allow the GMC to issue warnings to doctors.
	The GMC's document Good Medical Practice is small and easily read and written in plain English. It lays out the contract between doctors, patients and society. It stipulates the practice required for patients to know that they are being treated by safe and competent doctors. Kennedy commends that code in paragraph 45 of his report, which suggests that it should be incorporated into doctors' employment contracts and terms of service.
	There is concern that by making the regulatory body subject to directions from the Secretary of State in England, openness and transparency may be threatened and the role of Ministers in the three other countries may be undermined. Whistleblowers from the professions have had the courage to speak out, often at personal risk, to maintain standards in patient care. I know that from my own experience: I have blown the whistle myself and felt extremely vulnerable in doing so. I was glad that the GMC was wholly independent of any government department and anyone funding the health services.
	It is a real fear that the healthcare professions will not be truly independent of government and that the goalposts of expectations will be moved. Let us suppose that it is a few months before an election. The polls indicate falls for the Government. Sadly, another disaster happens and healthcare professionals are taken to task by the regulatory bodies, but not struck off. Bereaved relatives, angry and grieving acutely, are desperate for public redress. The press start baying for blood.
	We saw exactly that situation in the tragic case of Dr Philip Evans, an excellent GP who had been a personal friend since we were students. He took his own life as a result of unbearably damaging allegations in the local press. How could any government resist the pressure to state that they would re-examine the issues, implying a possible raising of the stakes, even though the decision had been equitable for all the healthcare professions involved and all the evidence had been considered?
	An article in the British Medical Journal on medical error by Albert Wu states:
	"although patients are the first and obvious victims of medical mistakes, doctors are wounded by the same errors; they are the second victims. Nurses, pharmacists and other members of the healthcare team are also susceptible to error and vulnerable to its fallout . . . They too are victims".
	Sadly, human fallibility is an inescapable reality.
	Amendment No. 173 removes the power of direction completely and is therefore to be supported. I support also Amendment No. 166, although I have reservations about its wording, as it would not be practicable for all the professions as a whole to be consulted, although the professional regulatory body should certainly be consulted.
	Amendment No. 172 is important. There may be a request which on examination would not be in the best interests of patients. I should be grateful if the Minister would reassure me that the term "co-operation" as outlined in the Bill means that the regulatory body must listen to, consider carefully and make a reasonable decision on an issue. The amendment ensures that one professional regulatory body can stand out for evidence on what is best for patients, even when that position is against the interests of some of the professions.
	The Minister has not yet spoken to Amendments Nos. 174 to 179, but perhaps I may outline some of my concerns because I realise that we are running late. I cannot support these amendments because they represent a compromise position between the Bill as it stands and the maintenance and regulation of the healthcare professions as independent from the government of the day and directly answerable to Parliament, which is the stand that I should like to take. They also do not allow equal recognition of the Ministers of health in Scotland, Wales and Northern Ireland under devolution, as the Secretary of State for England would exert control.

Earl Howe: Lest the Committee is in any doubt, I should point out that it is my name and not that of an interloper that appears at the head of this amendment. I should like to express my support for the concept of a Joint Select Committee of both Houses.
	The chief defect of the council is that, from the standpoint of each individual health regulator, it purports to offer accountability to Parliament at one remove. As the Bill stands, only the council has direct accountability to both Houses of Parliament. That seems an unsatisfactory way to proceed. While under the Bill the council will be able to exercise control over the individual regulators and (if we accept the government amendments) will be accountable to Parliament for any directions that it may issue, what surely matters to Parliament and to us all, at least as much as any differences of opinion between the council and the regulators, is the way that the regulators discharge their functions year in and year out. If accountability to Parliament in this context is to be taken seriously and be truly visible, that accountability should surely take the shortest route. It should also be delivered in a manner that allows for maximum openness, and, if need be, for cross-examination. A Select Committee to which all the regulators would be answerable would provide an ideal vehicle for the process.
	All this begs the question of whether there is any need for the powers of direction to be enjoyed by the council for the regulation of healthcare professions. If the regulators report to and are called to account by Parliament directly, then an affirmative resolution, if ever one were required, could be triggered through the mechanism of the Select Committee and its reports. As has been said, it is not for this place or the Bill to establish such a committee; that is a matter for Parliament. However, the Government's views on the proposal will be of some importance. It would be useful at this stage to hear the reactions of the Minister.
	As the noble Baroness has included a later group of amendments with this one, perhaps I can speak briefly to Amendment No. 168 which points to a part of Clause 24 that seems to me to sound alarm bells. It appears to give the Government carte blanche at some future date to widen the remit of the council in virtually any way they choose.
	As I read it, paragraph (e) of subsection (9) could allow the council to involve itself in every single area of policy and activity with which a "regulatory body" is concerned. The Explanatory Notes make it clear that paragraph (c) could not be used to enlarge the council's powers of direction, which is important; nor, I take it, could it override subsections (3) and (4), which prevent the council from intervening in "fitness to practise" cases. Can the Minister say whether it could enable the council, for example, to assume a wider or more direct role in determining ethical codes of professional practice, or in determining the detailed content of clinical education and training; or, indeed, in deciding who is, or is not, admitted to the register? I believe that we ought to have this part of the clause explained in more detail than we have been given hitherto.

Lord Hunt of Kings Heath: Before I deal with the amendments, perhaps I may tell the noble Baroness, Lady Carnegy of Lour, that I have been most interested in the Reith lectures given by the noble Baroness, Lady O'Neill. I have a great deal of sympathy with some of the points that she has made about the potential for over-regulation. The Government have signed up to the importance of professional self-regulation. However, I ought also to point out that the purpose of self-regulation is not for the greater glory of the profession itself; it is to serve better the public interest. The intention behind the Government's proposals is to strengthen self-regulation in the public interest.
	As the noble Baroness, Lady Northover, suggested in her opening remarks, we need to go back to the Bristol inquiry report and to the specific endorsements and comments in recommendations 39 and 40 which stated:
	"a council for the regulation of healthcare professionals should be created to bring together those bodies which regulate healthcare professionals . . . in effect, this is the body currently referred to in the NHS Plan as the council of healthcare regulators . . . [it] must ensure that there is an integrated and co-ordinated approach to setting standards, monitoring performance, and inspection and validation. Issues of overlap and of gaps between the various bodies must be addressed and resolved".
	We accepted Kennedy's recommendation about the council. We published our more detailed proposals and engaged in a consultation exercise. The results of that consultation exercise supported the establishment of a new, more transparent framework for self-regulation which explicitly puts patients' public interest first and provides for greater integration and co-ordination and sharing of good practice between the regulatory bodies.
	The existing regulatory bodies have responded to the need for reform; for example, to improve their fitness-to-practise procedures and to modernise and streamline their governance. The value of the council for the regulation of healthcare professions in this climate will be in keeping up the momentum of change and helping it to happen in a co-ordinated way.
	Regulatory bodies and consumer groups have welcomed plans to establish the council. We reached an agreement with the regulators on the new council's proposed powers and that was communicated in the press statement issued on 5th March. That also contained statements from the presidents of the General Medical Council and the General Dental Council expressly stating that the new council would preserve parliamentary accountability and the important principle of self-regulation. Sir Graeme Catto, President of the General Medical Council, stated:
	"I am delighted that we have been able to reach an agreement with the Government that maintains the line of direct accountability of the GMC, and the other regulatory bodies, to Parliament. The issue of maintaining our independence from Government has been crucial throughout our discussions and I am delighted that the proposed amendment satisfies these concerns."
	We have not reached the group of amendments which I shall move which relate specifically to the comments of the president of the General Medical Council. However, in addressing this first group of amendments, it is important to make clear the agreement that has been reached between the Government and the regulatory bodies.
	I turn to the group of amendments which are about accountability to Parliament of professional regulatory bodies. Essentially, the core of the amendments would do away with our proposed new council for the regulation of healthcare professionals and propose that many of its functions should be given to a health joint Select Committee if Parliament should so decide to establish such a committee. I shall come to that in a moment. However, I take the opportunity to spell out how the accountability of regulators will work under the Bill. The council will be accountable to Parliament. Schedule 7 of the Bill obliges it to lay a report before Parliament each year. It must also, under the same schedule, provide Parliament with a special report on any matter which Parliament asks it to. It must also lay its accounts before Parliament.
	The regulatory bodies have long been accountable to Parliament in the sense that Parliament can ask them to provide evidence to, for example, departmental Select Committees. That has happened on a number of occasions in the past few years. The Bill maintains that accountability to Parliament for the regulatory bodies. What it changes is that in essence it provides Parliament with some assistance in the work of the new council. Reports from the council will allow Parliament to see more readily how the world of regulation is developing, what is going well and, if necessary, what is going less well and requires closer scrutiny.
	I say to the noble Baroness, Lady Northover, that the amendments that she specifically puts forward are somewhat unusual. They seek to specify the way in which Parliament could exercise its powers to hold the regulations to account and, in essence, to appoint a joint Select Committee to take on the functions of the proposed council.
	Amendments Nos. 165E and 165F appear to be particularly unusual. Their effect would be to turn the tables so that the Secretary of State, the National Assembly for Wales, the Department for Health in Northern Ireland and the Scottish Minister, could ask Parliament for advice; and it would be obliged to comply. That surely cannot be right. The noble Baroness forecast that I would say this, and I shall: it is for Parliament to decide whether it wants a joint health Select Committee. I can have no views about the rights or wrongs of this particular means of improving accountability. That is a matter for Parliament and not the Government.
	I am concerned to see that regulators should be more effectively accountable to Parliament. I believe that the proposed council will, as I said earlier, enhance accountability to Parliament by helping it assess the performance of the regulatory bodies.
	I do not think that the parallel with the Ecclesiastical Committee helps us. I never thought that I would discuss that committee on health matters. But my understanding is that its role is in the passage of Church of England primary legislation. That is very different from this new council which exists to promote best practice in regulation, overseeing the work of regulated bodies and helping Parliament hold them to account. Unlike the Ecclesiastical Committee, the council and the regulated bodies do not have powers to intervene in the making or amending of primary legislation. I would be happy to write extensively to the noble Baroness about the Ecclesiastical Committee if she would like me to.
	Amendment No. 167—and indeed I think that I can now refer to Amendment No. 168 as well as Amendment No. 169—would take away the ability to modify the scope and functions of the council by a Section 60 order. I take the substantive point of concern of both the noble Baroness and the noble Earl about this matter—a feeling that the Government might be allowed to use this power to build up the council's power over time over the regulated bodies. But I would remind Members of the Committee that Section 60 is limited by some stringent safeguards provided in Schedule 3 of the Health Act 1999.
	As a result of Schedule 3, as well as a stringent consultation and parliamentary approval process, the Government cannot abolish an existing regulatory body; they cannot impose a lay majority on an existing council; they cannot remove a function conferred on the Privy Council; they cannot remove core functions from existing regulatory bodies, such as keeping the register—I think that this is the answer to the noble Earl, Lord Howe—determining standards of education and training for admission to the profession; and administering procedures relating to misconduct, fitness to practise and similar matters.
	It is not as though future changes to the council provided for here could diminish the independence of the regulatory bodies. We have also added a new safeguard in Clause 24(10) that an order about the council may not give the Secretary of State more powers over that council. I think that that preserves the independence of professional self-regulation fairly comprehensively.
	Amendments Nos. 167 and 169 stop us modifying the council in any way without a new Bill. We could not clarify some of its functions. We could not remove a regulator from its scope. Although any new regulators set up would automatically come under its responsibilities under Clause 23(3)(j). We could not at some future date decide that the council's field of activity was too wide and remove a subject, say education, from its scope.
	Amendment No. 168 removes the power in a future Section 60 order to take a regulatory body which had a mix of regulatory and other functions. The Royal Pharmaceutical Society of Great Britain and the Pharmaceutical Society of Northern Ireland are the current examples. We could not alter the mix of its functions which fell within the council's scope. It is logical to include that flexibility, although at present we have no plans to use it. By way of conclusion, I return to our great debates about Section 60, which was created to allow more flexibility in the workings of professional regulation. So far, we have introduced several orders covering medicine, dentistry, nursing and the allied health professions, all of which have benefited from those provisions. Given all the caveats and safeguards that I have mentioned, it would surely be odd if the council that brings all the professions together were to be the only one over which there could be no such flexibility.

Baroness Northover: I very much regret the fact that we have reached this major part of the Bill for debate at this hour. I thank the noble Baronesses, Lady Carnegy and Lady Finlay, and the noble Earl, Lord Howe—not "the Eark Howe" described on the Marshalled List—for their careful exposition of the issues.
	Healthcare professions have self-regulated since at least 1858. Precisely how we move forward to a more transparent and accountable system in the 21st century should not be decided at the tail end of the agenda late at night like this. I understand that the Minister may well feel demob happy as he nears the conclusion of the Bill's consideration in Committee, but I trust that on Report we shall have more thorough consideration of the issues involved. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 159B not moved.]

Earl Howe: moved Amendment No. 160:
	Page 29, line 27, leave out from beginning to end of line 30.

Earl Howe: We come now to a significant group of amendments relating to the proposed council for the regulation of healthcare professionals. In moving the amendment, I shall speak also to Amendments Nos. 165, 166, 172 and 173.
	We all know the origins of this part of the Bill. In his report on the Bristol Royal Infirmary, Professor Sir Ian Kennedy drew attention to the need for an independent body to oversee the activities of the various statutory regulators of the healthcare professions. In response, the council for the regulation of healthcare professionals is to be set up, with an explicit remit to promote the interests of patients and the public in the way that the regulatory bodies carry out their work. I have no problem with that general concept—indeed, I welcome it in so far as it provides a formalised means of promoting good practice and a consistent approach among all the regulators.
	When the Bill was first published—indeed, right up until Second Reading in this House—the proposals for the new council excited no little degree of concern. The main concern related to the council's powers. Besides having the worthy and uncontroversial function of promoting best practice and co-operation between the regulators, it was also being given power to direct any or all of the regulators and, furthermore, to do so without reference to Parliament.
	Two cardinal principles are thereby undermined: the accountability of each regulator to Parliament; and the regulator's independence from government. Since Second Reading, an agreement has been reached between the Government and the regulatory bodies that addresses at least part of those concerns. The Minister has already referred to that agreement. The amendments tabled by the Government, to which the Minister will no doubt shortly be speaking, embody the substance of that agreement.
	The government amendments provide that any direction made by the council would come into force from a date specified by order and that such an order would be subject to affirmative resolution in both Houses of Parliament. Those provisions reflect the recommendations of your Lordships' Select Committee on Delegated Powers and Regulatory Reform. I am grateful to the Minister for so helpfully writing to me on the matter. I acknowledge that the amendments have been welcomed by the regulatory bodies.
	If I am able to give only one-and-a-half cheers to the amendments, not three, that is because they do not go to the root of the concerns that I and many others have voiced. What do we mean by the term "profession"? The essence of a profession is its expertise and its standards. For many years, we have, in this country, had a mechanism for defining and overseeing professional expertise and standards. That mechanism—in the case of the medical profession, it is embodied in the GMC—is characterised by a professional majority in decision-making and by its independence from government. It is the profession, not the government, that decides what constitutes proper standards of practice, training and ethical behaviour. That is as it should be. Governments are in no position to second guess the standards that the professions set themselves. The day that that happens is the day on which the professions will be devalued; their ethos will no longer be their own.
	Ultimately, of course, each profession and each professional regulator derives its authority from Parliament. However, Parliament allows them to operate independently. That independence is crucial in the setting of standards. The standards of behaviour and integrity expected of a professional person are higher than for other types of occupation and cover, for instance, sexual mores and the duty to maintain strict confidentiality. We cannot expect a professional to operate to an elevated code of conduct if, at the same time, we allow non-professionals to dictate to him how he should practise. Professional expertise and standards are inextricably intertwined.
	What are we to say about the Bill through which an overarching council with a lay chairman and a lay majority is being given powers to direct the professional regulatory bodies? We must examine what the Bill says. Clause 24(2)(c) says that the council may,
	"recommend to a regulatory body changes to the way in which it performs any of its functions".
	I ask the Minister whether that includes ethical guidance and standards. If it does, that is territory we enter at our extreme peril. Taking that in conjunction with provisions in Clause 25, a regulator has a legal duty to co-operate with the council in the exercise of its functions. In addition, the council has a power to direct the regulatory body to change its rules when it considers that it would be desirable to do so for the protection of members of the public. The regulator must comply.
	Whether or not such regulations are subject to affirmative resolution in Parliament, I am deeply troubled that I am being asked to approve a situation in which lay people have power to direct the professional majority and the Privy Council-appointed lay minority of the GMC, the GDC or other regulators. Such lay people will not have been elected and may have no experience of any of the health professions or of the performance or conduct committees that hear allegations against health professionals. They will not obviously have a better sense of the public interest than the lay members of a regulatory body.
	I do not know what I would think if I had been appointed by the Privy Council to serve on the GMC and had served for several years only to be informed that the GMC must comply with an instruction issued by a small number of inexperienced lay people, most of them political appointees of one kind or another. I think I would feel demeaned and also that the medical profession was being demeaned.
	Can the Minister clarify whether the duty of a regulator to comply with a direction from the council conflicts with the Trustee Acts? The GMC is a charity; its trustees have a duty to act in what they perceive to be the interests of their charity. How can they legitimately be required to do something they consider wrong just because 10 people in another body happen to disagree?
	If we are looking for a way of improving the accountability to Parliament of the regulatory bodies, then a mechanism such as a Joint Select Committee would provide that. The Minister will have gathered that I regard the power of direction contained in Clause 25 to be misconceived and likely to lead to serious difficulties. But difficulties are also likely to arise in interpreting some of the wording elsewhere. In Clause 23(2)(c) and (d), dealing with the functions of the council, exactly what are we to understand by the words "encourage" and "promote co-operation"? In precisely what ways will this be done?
	What are the implications of those words for the future of uni-professional regulation? Can the Minister say whether the Government are committed to uni-professional regulation or is there an intention, over the longer term, to try to merge the regulation of the various healthcare professionals, not necessarily in a formal way but perhaps under a more de facto arrangement?
	If we look on a broader level at what the council will be charged to do, it is not immediately easy to see how a body tasked with policy making and promoting co-operation between the professional regulators will at one and the same time be effective wielding a stick as a regulator in its own right. Simultaneously it will be a facilitator trying to bring bodies together and a prosecutor, judge and jury on any actions of the professional bodies of which it does not approve. That is a potentially uncomfortable combination of roles and, I should have thought, a virtually automatic recipe for tension. I am therefore doubtful about how effective the council can hope to be in any of its stated roles.
	Other features also puzzle me. Why is it that when the Secretary of State asks the council for advice on any matter connected with a healthcare profession, as he may under the terms of Clause 24(7), there is absolutely no requirement for the council to consult or seek advice from the profession concerned? I wonder what kind of advice the Secretary of State is likely to receive without such consultation. Furthermore, in Clause 25(1) there is a duty placed on each regulatory body in the exercise of its functions to "co-operate" with the council. Exactly what does that mean? What would a regulatory body have to do to fail in this duty and who would decide whether it had done so?
	I am sorry to have spoken at more length than usual, in particular at this time of night, but it has been necessary to do so with such a large grouping of amendments. I beg to move.

Lord Hunt of Kings Heath: I want to reassure the noble Earl, Lord Howe, that I think his fears are overstated. Frankly, I do not believe that they are shared by the regulatory bodies themselves, as I intimated from the extracts of the statement made at the beginning of March by the regulatory bodies, in particular the presidents of the GMC and the GDC.
	I share the view that promoting the best interests of patients through securing common principles of regulation and the adoption of best practice is the main goal. To achieve that, we are working with the regulatory bodies to strengthen the framework of professional self-regulation so that it explicitly puts patients' interests first, and provides for greater integration, co-ordination and the sharing of good practice between the regulators.
	I understand the concerns raised by the noble Earl about how the new council will discharge its responsibilities. I have no doubt whatever that the new council will be able to achieve its goals in a light-touch way through persuasion, agreement and co-operation with the regulatory bodies on any necessary reform.
	However, I also believe that it is important for the council to have the necessary tools to ensure that it can do its job properly, as advocated by Professor Kennedy, in order to overcome obstacles to reform which could arise. Furthermore, the amendments that I shall speak to shortly and other amendments that have been tabled during the passage of the Bill, which ensure the council's main powers are subject to parliamentary approval, do provide the necessary safeguards in relation to the power of the council to direct the other regulatory bodies.
	I re-emphasise the enthusiasm with which the regulating bodies generally have welcomed plans to establish the council. One cannot ignore the fact that many of those regulatory bodies have issued statements which make it clear that they welcome the approach the Government have taken.

Baroness Carnegy of Lour: I really cannot sit here while the noble Lord makes his speech. Does he not realise that in accepting the Kennedy report—which they did not have to do—they were doing so in an atmosphere of the "something must be done" syndrome? In accepting the report, the Government made it very difficult indeed for the regulatory bodies to do anything other than welcome it. What would the public have thought if they had refused? It is for Parliament to look at the democratic effect of what the Government are saying. To argue that the regulatory bodies and the professions are quite happy is simply not good enough.
	My noble friend made an extremely important speech, which I hope the Minister will read with great care. He put all the points very clearly. The Government will have to be extremely careful. They are on very tricky ground indeed.

Lord Hunt of Kings Heath: I do not accept that point at all. The fact is that we have had long and detailed discussions with all the regulatory bodies over the past few months. We have come to an agreement over the use of affirmative resolutions in relation to the discharge of the power of direction which is to be given to the new council. In a statement—not at the height of the publication of the Kennedy report but only a few weeks ago—the regulatory bodies themselves have said that they are agreeable to what is being proposed. One cannot discount the views being expressed by the regulatory bodies.

Baroness Finlay of Llandaff: I thank the Minister for giving way. While he is on the point, can he confirm that an affirmative resolution of the power of direction must not merely be laid before Parliament but must be debated and will be subject to a free vote?

Lord Hunt of Kings Heath: Clearly, if it is an affirmative resolution it will have to be debated. I dare not talk about free votes with the Government Chief Whip in his place. That is not a matter for me. However, as my noble friend has pointed out, there is always the prospect of a free vote for Cross-Benchers.
	I find it difficult to support Amendment No. 160. It would give a less proactive role to the council to encourage co-operation between the regulatory bodies and to conform to good principles of regulation. The amendment would only hinder the council in its constructive activities of ensuring a consistency of approach between the different regulatory bodies. That again was surely a point made by Kennedy. It was a part of his rationale for establishing the council. It was also, in his view, a reason for the council to work closely with other quality-related bodies.
	The amendment would make it harder for the council, should it find it necessary, to promote co-operation between, for example, the regulatory body and the quality assurance agency in regard to the fitness for purpose of educational courses and qualifications; or between all of the regulatory bodies and, for example, the General Social Care Council; or between the GMC, the GDC and the National Clinical Assessment Authority in regard to the thresholds at which poor performance by a doctor or dentist must lead to referral to his or her regulatory body.
	Of course these dialogues could take place without the council's encouragement—some already do at the moment—but if they were breaking down, the amendment would make it hard for the council to use its good offices to salvage them. The amendment would also delete the council's role in encouraging regulatory bodies to conform with the principles of good, professional self-regulation but that is just what we want the council to do. I do not believe that the regulatory bodies have any problems with that concept.
	Amendment No. 165 deletes one of the examples of the council's powers from Clause 24(2). It takes away the words
	"recommend to a regulatory body changes to the way in which it performs any of its functions".
	We want the council to be able to recommend changes to a regulator. Surely that flows naturally from the other functions of reporting on performance and, where appropriate, comparing the regulatory bodies mentioned in Clause 24(2). That is also a necessary way of carrying out the functions bestowed on the council in Clause 23. The purpose of the council is to provide energy for improvement. If we agree that—as Clause 23 states—the council should promote best practice, for anyone not already following best practice surely that amounts to a recommendation for change.
	The council's working methods are for it to decide. It might decide to invite regulators to pool their experience on an issue such as using the findings of overseas regulatory bodies. That might show that one or two bodies with more experience had better systems than the others. The council might publish guidance suggesting the advantages of their approach. Surely that should be encouraged.
	Amendments Nos. 165YA and 165ZA address the same subsection. Instead of deleting it, they would make minor changes to the wording. They would not alter the effect of the Bill. I do not believe that it is necessary to spell out that any changes recommended would need to be improvements. The council would not suggest changes unless it believed that to be the case.
	Amendment No. 166 requires the council to consult a profession on which a Minister has asked its advice before giving that advice. I agree that is a reasonable way to expect the council to proceed but I do not think that needs to be written into the Bill. There may be situations where it would be appropriate for the council to consult the professions before giving advice. Equally, we can envisage situations where the council would consult regulatory bodies frequently through consultations, meetings and documents in the legitimate way that it goes about its business. There may be a situation where Ministers need information about a profession to which the council already has access. Some of that information may be fairly routine. If the council had to consult before it could give such advice, that would surely cause unnecessary delay.
	I listened with great interest to the noble Earl's comments about the dangers, as he saw them, of a lay majority on the council but it will contain also nine members appointed by the regulatory bodies who will have expertise of particular health professions. They will be in a good position to give advice on the information that should be provided directly to Ministers and on the issues that may need appropriate consultation with the regulatory body. It would be inflexible if such processes needed to be prescribed in the Bill—particularly since one is talking about giving advice.
	I understand that the purpose of Amendment No. 172 is to seek reassurance that the duty to co-operate is not absolute. When a comparable amendment was debated in Committee in another place, my right honourable friend the Minister of State for Health, Mr. John Hutton, gave an assurance that in approaching any decision, the council would have to act reasonably and on the basis of evidence that would support its determination, which shows that there are sufficient safeguards in the system.
	I can also offer the reassurance that the duty to co-operate is not absolute. If any court is ever called upon to consider whether a regulatory body was in default, I expect that reasonableness would be very much part of the courts determination. In essence, that is the answer to the noble Earl. If a regulator refused to comply with a direction made under the clause, it would be open to the council to seek, by way of judicial review, an appropriate declaration or order from the courts. Then it would be up to the courts to make such a decision.
	Turning to Amendment No. 173, Clause 25 contemplates a situation where the council has identified a problem with the way in which one regulatory body's rules operate. There will have been discussions, perhaps extended ones, but no meeting of minds. If this is about some minor matter, it can clearly be allowed to rest there, but if the council has concluded that change is necessary for the protection of members of the public it needs to have some means to allow it to carry on its work. That is why we must retain the power of the council to impose a change, although we envisage this rarely if ever being used. My right honourable friend the Minister for Health also gave such assurances in Committee in another place. Amendment No. 173 would weaken the council and its ability to work in the interest of the public.
	I repeat that there have been statements of support from regulators. For example, the UKCC of nurses, midwives and health visitors welcomes the suggested accountability arrangements. The chief executive of the UKCC said last August:
	"Being accountable to Parliament through the new council seems sensible and simple and ensures independence from the government of the day".
	I have other quotations with which I shall not trouble the Committee at this late hour.
	I now turn to the government amendments, which are important to our debate. Amendments Nos. 174 to 179 and 189 to 194 ensure that before the council could use its reserve power to direct a regulator to change its rules, the direction would need to be approved by affirmative resolution of both Houses of Parliament.
	The council should, as a last resort, be able to require a regulator to change its rules in the public interest provided that both Houses of Parliament agree. Surely, adopting this approach preserves the principle that regulators are accountable to Parliament.
	The drafting is a little complex for two reasons. The Bill puts all the provisions relating to orders together in Clause 36. Secondly, the amendments have to cover all eventualities, including directions which vary or revoke earlier directions. I hasten to add that the number of words used is not a guide to the frequency with which this power is likely to be used.
	The key amendments are Amendments Nos. 176 and 191. Together, these provide that a direction shall come into force on a date specificed by the Secretary of State by order, such draft order being approved by resolution of each House. That is the change which the Select Committee on Delegated Powers and Regulatory Reform recommended in its report on the Bill. I am grateful to the committee for its report. As I have said, the changes it suggested have won the approval of the professional regulatory bodies, leading to a satisfactory conclusion.
	I do not under-estimate the original concerns of some of the regulatory bodies. I take in good faith the criticisms that the noble Earl, Lord Howe, has brought together. I strongly believe in professional self-regulation. I believe that the new council will enhance that self-regulation, and that the amendments that I now propose will ensure the primacy of Parliament in having to agree through the affirmative resolution procedure any use of such a direction.
	A balance must always be held between professional self-regulation, parliamentary accountabilty and the public interest. I believe that, taken together with these amendments, we have got the balance right.

Earl Howe: If parliamentary approval is given to an order that embodies a direction given by the council, why is it necessary to include the words "must comply" in Clause 25(4). If there is an affirmative resolution in Parliament, surely the regulatory body is bound to comply anyway. I wonder whether that part of the clause could be re-examined.

Lord Hunt of Kings Heath: I am happy to look at the technical wording. However, as I understand it, that was certainly the intent before we placed the amendments before the Committee; namely, if the regulator refused to comply with a direction made by the council, it would be open to the council to seek, by way of judicial review, an appropriate declaration or order from the court. Of course, I fully accept that, if Parliament had determined through an affirmative resolution that a direction should be made, it would be highly unusual for one of the regulatory bodies to say that it was not going to apply it. I will, however, look at the wording to ensure that it is consistent with the amendment, and I am grateful to the noble Earl for raising that point.

Earl Howe: I thank the Minister for that reply. I shall make a few concluding comments, if I may. He is, of course, perfectly right to say that the regulatory bodies do not share—or, at least, have not expressed—the same concerns as I have. They have welcomed the Government's amendments, as do I. The amendments are a step in the right direction, and I do not wish to take anything away from that. Wider issues, however, remain unresolved, and they are the ones that I have tried to articulate.
	The fact remains, that I fear, that the powers of direction proposed for the council in Clause 25 are potentially wide. As the Royal Pharmaceutical Society pointed out in a paper that it sent to me, no real limits are specified on the use of these powers, on how frequently they can be exercised, or on the circumstances in which they can be deployed. I do not feel any clearer on those points, having listened to the Minister's reply, and we need to be clear about them if we are to understand how the regulatory duties and responsibilities of the professional regulators are to be affected and influenced by the new council.
	I do not think that the Minister answered my question about the Trustee Acts, or my question about whether the functions referred to in Clause 24(2)(c) could include ethical guidance and standards.

Lord Hunt of Kings Heath: I shall be happy to respond in writing to the noble Earl, but my understanding is that the council will operate in respect of all functions of the regulatory bodies, although the pharmacy bodies will be an exception because they serve as representative bodies as well as professional self-regulators. So, in relation to the power of direction under Clause 25, what the council will be able to do will depend entirely on what powers the regulatory bodies have to make rules, and on whether directing a change in rules would be for the protection of the public.

Earl Howe: I am grateful to the Minister for that. As I said, the amendments tabled by the Government are welcome as additional safeguards against any possible maverick direction by the council. We need to be honest with ourselves, however. When all is said and done, the power of direction that is being conferred on the council brings to an end the concept of professional self-regulation. For me and for many others, that is a serious and very regrettable development. This has, however, been a useful exchange of views and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 23 agreed to.
	Schedule 7 [The Council for the Regulation of Health Care Professionals]:

Baroness Northover: moved Amendment No. 161:
	Page 88, line 34, leave out "regulatory body" and insert "of the regulatory bodies referred to in section 23(3)(a) to (h)(i), and three members appointed by the regulatory body referred to in section 23(3)(h)(ii) or the successor regulatory body (within the meaning of Schedule 3 to the Health Act 1999 (c. 8)) to the Council for Professions Supplementary to Medicine (the Health Professions Council) established by order in Council under section 60 of that Act"

Baroness Northover: I shall speak to Amendments Nos. 161 and 162. As currently proposed, the council will give equal weight to all existing regulatory bodies, regardless of their different sizes, and of whether the body in question regulates one, two or 12 separate professions. No doubt, this was the simplest way that the Department of Health could come up with, given the minefield that it was entering. At present, for example, the Bill allows for the appointment of only one representative on the council for the 12 allied health professions regulated by the Council for Professions Supplementary to Medicine. The allied health professions will, therefore, be regulated as though they were a single profession, despite the fact that they are 12 professions with little in common.
	Although we recognise that the council could not reflect all the differing proportions of the various bodies, some recognition of this fact is surely due. The Bill allows the General Osteopathic Council and the General Chiropractic Council each to have one person on the over-arching council, despite the fact that the former represents only 3,000 registrants, and the latter only 1,600, while the allied health professions' organisation, which represents 111,000, would also have only one. That does not seem right. The situation is an historical accident. When new bodies are set up, they should not simply enshrine historical accidents but should look at things afresh. After all, the NHS, which was set up with the historical accident of having over-provision of hospitals in one place and under-provision in another, has spent the past half century trying to sort that one out. We should not let historical accident dictate in such cases. The body needs to be able to take with it all its constituent parts if it is to work. I suggest that the issue should be addressed again.
	On Amendment No. 162, the Bill establishes an important principle, to which the noble Earl, Lord Howe, has already referred. There is a lay majority on the council. We do not feel that a lay majority is the answer to the problems that the Government are trying to tackle. We would have the professions answerable directly to Parliament. That is appropriate. Meanwhile, the professions themselves are surely best placed to regulate their members, provided they are then answerable to Parliament. I beg to move.

Earl Howe: In the interests of time, I have decided not to speak to Amendments Nos. 163 and 164 and do not intend to move them. However, I shall say a few words about Amendment No. 162, which seems to get to the heart of the awkwardness that characterises the council's intended role. If there are points of agreement among all sides in the debate, they are that we want a council that is independent in its operation and is informed and effective in holding the regulatory bodies to account. The virtue of the Government's formula whereby the appointees of the regulatory bodies are in the minority is that no credible body that formally holds the regulators to account can be controlled by representatives of those regulators. To that extent, I venture to part company with the noble Baroness, Lady Northover.
	On the other hand, the noble Baroness has made some very powerful points. How can we call the council independent when it will be controlled by individuals who owe their appointment to Ministers or to one of the regional assemblies? Were it not for the power of direction, I would have much less difficulty with the Government's formula, but I have come to think that there is no perfect answer to the conundrum. We need both the informed input of those who represent the regulatory bodies and the detached common sense of lay appointees, who will be there above all to represent the interests of patients and the public.
	Perhaps the ideal formula would be for neither group to be able to force a majority. That would be a good discipline. If the council is to be worth anything, it should speak with a united voice and a voice of authority. It should consist—or be perceived as consisting—of two separate camps. If neither group was in the majority, all appointees would be bound to try to co-operate and work together by consensus. I wish that I had tabled an amendment to that effect. Perhaps the Minister would care to comment on the idea.

Lord Hunt of Kings Heath: The noble Baroness, Lady Northover, suggested that we were in a bit of a minefield on issues of representation of various regulatory bodies. She is right that the representation has historical roots. However, reopening that historic basis would be likely to lead to great problems between the different professions and regulatory bodies. The regulatory bodies have accepted that this is a sensible way forward.
	We must also bear in mind that the health profession members of the council are there to perform a collective function. I revert to our earlier discussion on patients forums electing members to the boards of NHS trusts—which may be the route by which some members arrive at the table, and to which they will bring a great deal of public and patient experience. However, once they get to the table, they will have a collective responsibility. Surely the same applies to the health professional members of the council.
	I think that rather than being seen to represent one sectional interest, the health profession members will bring an expertise in professional regulation in general. The council's work will not usually focus on a single profession but will instead consider the needs and problems applying to all professions. Where necessary, the council will be able to publish drafts for consultation, hold ad hoc meetings with interested parties and find other ways of obtaining the input of individual professions.
	I tell the noble Baroness, Lady Northover, that the problem with accepting such an amendment is that it would risk damaging the spirit of co-operation that the regulated bodies have shown in welcoming the new council. Moreover, on a strict numbers case, it is probably the nurses and doctors who have a stronger argument than anyone. One thing that has struck me in all the discussions on changes to professional regulation which we have had with the professions in the past two or three years is that they have all accepted the need for a bit of give and take. In the interests of getting progress, movement and co-ordination, people have accepted that there will be discrepancies in relation to the membership of each council. I believe that the current proposal is the best way forward and that we would be opening a can of worms by reopening the whole question of representation and numbers. Ultimately, that would not lead to any improvement.
	I also accept that Amendment No. 162 takes us back to our discussion on the previous group of amendments. This amendment would replace a majority of one for those representing the public with a majority for the professions. My argument has always been that we are trying to strike a balance between the necessity of professional self-regulation, the wider public interest and appropriate accountability to Parliament. The Government contend that, with professional self-regulation, the professions will have a majority on the regulated bodies. We have also already agreed the use of the affirmative resolution in terms of any directions made by the council. I think that there is a persuasive argument in favour of a narrow majority of one on the council in favour of the lay element.
	I should also point out that those appointed will be chosen by the NHS Appointments Commission alongside the devolved administrations, who will appoint one member each. I also make it clear that the type of people whom we expect the Appointments Commission to choose are those with experience who will be able to speak out for the patient and public interest in relation to the health service. We certainly do not expect the commission to choose, as was unkindly suggested, government stooges. The whole purpose of creating effective self-regulation is to ensure that the public interest is safeguarded. That is the case for a majority of one for lay people, who I believe will be of the highest calibre.
	I tell the noble Earl, Lord Howe, that the regulated bodies themselves have not questioned being put in a minority of one on the council. Their concern was about the majority being appointed directly by the Government. However, that matter has already been dealt with by amendments in another place.

Baroness Northover: I thank the Minister for that reply, and I am only too well aware that there are various cans of worms in this particular sphere. I shall certainly examine his comments. I should emphasise, however, that underlying all our amendments is our public interest argument of accountability to Parliament. Some of the changes we suggest in some of our amendments have to be posited on that basis. For the moment, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 162 to 164 not moved.]
	Schedule 7 agreed to.
	Clause 24 [Powers and duties of the Council: general]
	[Amendments Nos. 164A to 169 not moved.]

Earl Howe: moved Amendment No. 170:
	Page 31, line 41, leave out from second "profession" to "which" in line 42.

Earl Howe: Amendment No. 170 draws attention to what is on the face of things a drafting oddity. Clause 24(12) states that
	"'health care profession'" means a profession (whether or not regulated by or by virtue of any enactment) which is concerned (wholly or partly) with the physical or mental health of individuals".
	That is an extraordinarily wide compass. It would be hard to think of any profession which is not at some time, at least in part, concerned with the physical or mental health of individuals. Architects build hospitals; bankers lend money to build hospitals; solicitors act for the sick. Even vets are concerned with the physical and mental health of individuals—namely, themselves.
	The Government's intentions may be clear, but I ask whether there might not be a tighter form of words which encapsulates more precisely the territory that the new council will occupy. The existing professions that are to come under the jurisdiction of the new council can surely be listed by reference to the regulatory bodies that govern them. If in the indefinite future there are to be other professions admitted under the same umbrella—there may well be, of course—we already have an order-making power in the clause which will ensure at least some parliamentary control over what professions can be added to the list.
	I do not understand why in subsection (12) there needs to be such a catch-all type of definition which appears to open the door unnecessarily wide. I beg to move.

Lord Hunt of Kings Heath: I hope that I can clear up the matter for the noble Earl, Lord Howe. The definition was used in the Health Act 1999, having in view the profession of psychology whose leaders wanted the door to be open to statutory regulation, although most do not practise in the health sector.
	The clause uses the definition where Ministers, including the devolved Administrations, can seek the council's advice on any matter connected with a healthcare profession. If the definition is narrower, the list of professions on which the council can advise us is reduced. The problem with that is that the narrow definition would exclude many groups who aspire to statutory regulation in the next few years. As the noble Earl will recall, about a year or so ago we debated with Lord Alderdice in his psychotherapy Bill. There are other examples including psychologists, psychotherapists, operating department practitioners, perfusionists and physiological measurement technicians, all of whom have expressed the wish to be regulated at some time in the future.
	There is nothing more sinister than that. The wide definition is simply to ensure that, if at any time in the future we wished to seek advice on professions to be regulated, it would be straightforward to do so.

Earl Howe: I am grateful to the Minister for that explanation and beg leave to withdraw the amendment.

[Amendment No. 171 not moved.]
	Clause 24 agreed to.
	Clause 25 [Regulatory bodies and the Council]:
	[Amendments Nos. 172 and 173 not moved.]

Lord Hunt of Kings Heath: moved Amendment No. 174:
	Page 32, line 2, leave out "direct" and insert "give directions requiring"
	On Question, amendment agreed to.

Lord Hunt of Kings Heath: moved Amendments Nos. 175 to 179:
	Page 32, line 5, leave out "so direct" and insert "give such directions"
	Page 32, line 7, at end insert—
	"(3A) The Council must send a copy of any such directions to the relevant authority.
	(3B) The relevant authority is the Secretary of State or, if the regulatory body in question is the Pharmaceutical Society of Northern Ireland, the Department of Health, Social Services and Public Safety there.
	(3C) The directions do not come into force until the date specified in an order made by the relevant authority.
	(3D) The Secretary of State must lay before both Houses of Parliament, or (as the case may be) the Department of Health, Social Services and Public Safety must lay before the Northern Ireland Assembly, a draft of an order—
	(a) setting out any directions he or it receives pursuant to subsection (3A), and
	(b) specifying the date on which the directions are to come into force.
	(3E) Subsections (3A) to (3D) apply also to—
	(a) directions varying earlier directions, and
	(b) directions revoking earlier directions, and given after—
	(i) both Houses of Parliament have resolved to approve the draft order specifying the date on which the earlier directions are to come into force, or (as the case may be)
	(ii) the Northern Ireland Assembly has done so.
	(3F) Subsections (3A) and (3B) apply also to directions—
	(a) revoking earlier directions, but
	(b) which do not fall within subsection (3E)(b),
	but subsections (3C) and (3D) do not apply to such directions.
	(3G) If the Council gives directions which fall within subsection (3F), the earlier directions which those directions revoke shall be treated as if subsections (3C) and (3D) had never applied to them, and as never in force."
	Page 32, line 8, at end insert "which have come into force and have not been revoked"
	Page 32, line 14, leave out "directions given" and insert "the giving of directions"
	Page 32, line 16, leave out "it directions" and insert "directions relating to it"

Lord Hunt of Kings Heath: With the leave of the Committee I shall move Amendments Nos. 175 to 179 en bloc. I beg to move.

On Question, amendments agreed to.

Baroness Northover: moved Amendment No. 179A:
	Page 32, line 19, at end insert—
	"(9) Cases brought against clinicians will continue to be heard using the criminal burden of proof."

Baroness Northover: We seek assurance through Amendment No. 179A that the level of proof expected to be obtained in cases against health professionals will remain that of criminal rather than civil proof. As Members of the Committee will know, in civil cases the claimant has to prove his or her case on the balance of probabilities. In a criminal case the prosecution has to prove its case beyond reasonable doubt.
	Given the importance of these kinds of cases, the criminal standard is surely appropriate if a person's right to practise is to be removed. That does not remove the right to apply sanctions to people for misconduct found on the balance of probabilities. I trust the Minister will be able to reassure me on this point. I beg to move.

Lord Filkin: Amendment No. 179A is designed to prevent a direction by the council from requiring a regulator to change its rules to move away from the criminal standard of proof; that is, the need to prove, for example, misconduct beyond reasonable doubt before taking action affecting someone's registration.
	In fact the Bill does not alter the burden of proof; it is silent on that. Nor does legislation specify what standard should be adopted by regulatory bodies in disciplinary cases. That is a matter of case law rather than statute.
	I appreciate that some professionals might be concerned at the possibility of a change to the burden of proof. But that is not something the Government are seeking and I have no reason to believe that it will be something the new council raises. Does that imply, as the amendment seems to, that we should use the Bill to make it impossible for a regulator ever to change the burden of proof? I suggest not. For example, the GMC's current proposals to reform its fitness to practise procedures would allow it to close a case with a formal warning or advice to a registrant rather than deregistration based on a finding on the balance of probabilities, as would be the case in many other situations where a case of misconduct which did not lead to deregistration or dismissal might operate.
	Therefore, for some kinds of action it is possible that the civil burden of proof may be a live issue. In the unlikely event that the council wished to oblige some regulators to follow that route, I remind Members of the Committee that we have now tabled amendments to the Bill so that the direction would only have effect after both Houses of Parliament had approved an order setting a date for it to come into force. Moreover the council would have to prove that any such move was desirable for the protection of the public, which is the standard that the Bill applies. It would also have to convince Parliament of that. For those reasons I hope that the noble Baroness accepts that the amendment is unnecessary.

Baroness Northover: I thank the Minister for that reassuring reply. I shall read it in the cooler light of day. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 25, as amended, agreed to.
	Clause 26 [Complaints about regulatory bodies]:
	[Amendments Nos. 180 to 188 not moved.]
	Clause 26 agreed to.
	Clauses 27 to 34 agreed to.
	[Amendments Nos. 188A and 188B not moved.]
	Clause 35 agreed to.
	Schedules 8 and 9 agreed to.
	Clause 36 [Regulations and orders]:

Lord Hunt of Kings Heath: moved Amendment No. 189:
	Page 43, line 28, at end insert "or, in the case of an order made by the Department of Health, Social Services and Public Safety in Northern Ireland under section 25, by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12))"
	On Question, amendment agreed to.

Lord Hunt of Kings Heath: moved Amendments Nos. 190 to 194:
	Page 43, line 31, after "section" insert "25,"
	Page 43, line 34, after "34" insert ", or an order of the Secretary of State under section 25,"
	Page 43, line 35, at end insert—
	"( ) No order shall be made by the Department of Health, Social Services and Public Safety in Northern Ireland under section 25 unless a draft of the order has been laid before, and approved by resolution of, the Northern Ireland Assembly."
	Page 44, line 15, at end insert—
	"(6A) Subsections (4) to (6) do not apply to orders under section 25."
	Page 44, line 16, at beginning insert "Subject to subsection (6A),"

Lord Hunt of Kings Heath: With the leave of the Committee I shall move Amendments Nos. 190 to 194 en bloc. I beg to move.

On Question, amendments agreed to.
	Clause 36, as amended, agreed to.
	Clauses 37 to 40 agreed to.
	House resumed: Bill reported with amendments.
	House adjourned at twelve minutes past midnight.